Premalata Dei vs State of Orissa and Others

S.K. Mishra, J.—Heard Learned Counsel for the Petitioner & the Learned Addl. Government Advocate. The Petitioner in this case prays to grant seniority from the date of original posting of Sarojini Dei, who was Opp. Party No. 6 in O.J.C. No. 2480 of 2001, instead of date of her actual joining as the Anganwadi worker of Narendrapur Anganwadi Centre under the Kakatpur I.C.D.S. Project in the district of Puri. The undisputed fact in this case is as follows:

The Petitioner was an applicant for the aforesaid post. She was not selected & one Sarojini Dei was selected. Challenging her selection, the present Petitioner filed a writ application bearing O.J.C. No. 2480 of 2001 before this Court, which has been disposed of on 21.03.2001, wherein a specific order has been given that the appointment of the Opp. Party No. 1 shall be subject to the enquiry of the Collector, Opp. Party No. 3. It is apt to note here that this Court after hearing the parties has come to the conclusion that Opp. Party No. 3 i.e. the Collector shall do well to cause enquiry & dispose of the representation with a reasoned order within three weeks from the date of receipt of the representation. In pursuance of such order, the Collector, Puri enquired into the matter & came to the conclusion that the Petitioner should have been engaged as the Anganwadi worker of the aforesaid Anganwadi Centre instead of Sarojini Dei. Accordingly, selection & engagement of Sarojini Dei was cancelled & in her place, the present Petitioner was directed to join. She joined in Narendrapur Anganwadi Centre on 1.12.2001.

It is the claim of the Petitioner that as she was ready & willing to work & as she was not engaged as an Anganwadi worker due to fault & latches of the administration, she should be given seniority from 08.02.2001, on which date Sarojini Dei joined as Anganwadi Worker in the aforesaid Anganwadi Centre. In this connection, Learned Counsel for the Petitioner relies on the case of Union of India Vs. K.V. Jankiraman, etc. etc., wherein the Supreme Court in clear terms laid down that the normal rule of "no work no pay" is not applicable to such cases where the employee although is willing to work is kept away from work by the authorities for no fault of his. Relying upon the aforesaid Jankiraman''s principle, a Division Bench of this Court in Kuni Sahoo Vs. State of Orissa and Others, has held that due to fault or illegal action of the Opp. Parties, the Petitioner was kept away from job for the period now she is claiming. When there is no breakage of service, there is no reason as to why the Petitioner cannot be allowed to get the salary, for which she was kept out of job for the faulty action of the Opp. Parties.

In this case, the State has not filed any counter affidavit. So the factual aspect of the Petitioner''s case goes uncontroverted & it is to be held that the Opp. Parties were at fault in not engaging the Petitioner at the earliest opportunity & engaged Sarojini Dei in her place, though she was not the deserving candidate for being appointed as such.

In that view of the matter, the writ application is allowed. The Order Dated 08.06.2011 under Annexure-6 is hereby quashed. It is further directed that the Opp. Parties shall treat the Petitioner to have joined on 08.02.2001 & accordingly fix her seniority in the Kakatpur I.C.D.S. Project.

This order shall be given effect to within six weeks from the date of receipt of certified copy of this order. Urgent certified copy of this order be granted on proper application.