Ajit Kumar Mohapatra v State of Odisha & ors

Case No – W.P.(C) No 37932 of 2021
Date of Decision – 31.10.2023

The employee must be given the right of hearing before
retiring him compulsorily from government service.

This writ was filled challenging the decision of the state government to compulsorily retire the petitioner from government service at the age of 55 years.

The petitioners contend that the compulsory retirement handed out to him was illegal as Odisha Service Code stipulates that Compulsory retirement would be done on the ground of inefficiency in service or on doubtful integrity of an employee, which according to the petitioners was not the case, especially since the petitioner was granted promotion in 2019. It was also argued that his service record was impeccable and no adverse remark has been made against him. Furthermore, it was stated that the relevant regulations of the Service Code stipulate that premature retirement shall be granted after conducting performance review by a review committee, which, in the instant case, has not been complied with.

On the contrary State argues that the state government has taken the decision to weed out employees with record of corruption and demonstrated inefficiency. To that effect, the petitioner’s previous conduct, allegations and overall background was considered prior to his premature retirement. The state then rests the decision solely on a fresh vigilance case, which has been initiated against the petitioner but charge sheet is yet to be submitted. While wading through various judicial precedents, it was observed that since the petitioner was made to compulsorily retire on the ground of doubtful integrity, the analysis of the court has been limited to said ground only. The court opined that fitness to continue in the said post is determined based on service rendered in the last 5 years and the awarding of promotion. It was observed by the Court that such premature retirement cannot be treated as a punitive measure in lieu of a disciplinary proceeding, rather it must be resorted to when the review committee is of the opinion that the employee/officer’s continuance in service is detrimental to public interest.

Further, the court laying emphasis on the decision of the Apex Court in State of Gujurat v. Umedbhai M. Patel, opined that not only can premature retirement be not used to circumvent a departmental enquiry but also it shall not be imposed as a punitive measure. Additionally, where there is evidence that a public servant’s continuance in service is detrimental to public interest, a proper procedure must be followed for compulsory retirement by giving him the opportunity of hearing. Furthermore, it is not sound to conclude that the employee is lacking integrity merely because an inquiry is underway against such employee in view of certain allegations. Therefore, the general rule is that in case of premature retirement, before any conclusion is arrived at, the petitioner i.e. the employee must be given a chance to explain himself.

In the present facts, the petitioner has been granted promotion despite previous disciplinary actions. Additionally, his number of responsibilities have also increased despite lacking supposed integrity to continue in the said post. Furthermore, since the latest allegation is yet to be enquired into, there remains nothing on record to justify his supposed inability to continue in the said post, as claimed by the review committee.

Therefore, the writ application was allowed, and the court set aside the decision of the review committee.

Biswajit Panigrahi v State of Odisha & ors

Case No – W.P.(C) No 27484 of 2022
Date of Decision – 19.05.2023

‘Black mark’ imposed upon a police officer alongside withholding of increment cannot
be counted as ‘permanent black mark’ for the purpose of removal from service.

The petitioner is a police officer who has been in service since 1991 and over the years has accumulated a total of 9 black marks to his name on various counts. Due to accumulation of the aforesaid black marks, the petitioner was ultimately dismissed from service in 2020, as a punishment, by a disciplinary proceeding, without considering his views/stand. Hence the said writ petition was filed.

The petitioner contended that some of the black marks are conditional in nature and should not be treated as equal to a permanent black mark, as the conditional marks seize to exist after the scheduled period. Consequently, the petitioner is alleged to have 7 black marks as opposed to 9, as claimed. Further, it was contended that by considering the same black mark for termination of services, state is seeking to punish the petitioner twice.

State argues that all police officers below the rank of DSP shall be proceeded with once they have accumulated 9 black marks. Such caution was intimated to the petitioner upon his acquiring the 6th black mark. Further, it was stated that there is no irregularity in counting of the black marks and in terminating the petitioner’s service since proper procedure was followed and the principles of natural justice were observed. It was also submitted that the marks are permanent in nature and can only be removed by appellate authority, which in the instant case has not happened.

The court distinguished between the two kinds of black marks and noted that if they are received independent of any other punishment, they shall be permanent in record but where they are awarded along with other temporary punishment, they shall be temporary in nature. It also stated that since the black mark was included while withholding the petitioner’s increment, counting it again for the purpose of termination would amount to double punishment.

Furthermore, the court also said that considering the gravity of the consequences, the authorities ought to have heard him and as such natural justice having not been followed; the act of the concerned authorities is unsustainable by law.

Accordingly, the writ petition was allowed.

Biswajit Swain v State of Odisha & ors and Batch

Case No : W.P.(C) No 5214 of 2021 & ors

Date of Decision : 31.10.2023

Rule 6(9) of the Odisha Civil Services (Rehabilitation Assistance) Rules,
2020 was declared ultra vires of Article 14 of the Constitution.

These matters involve a batch of cases arising out of a similar set of facts. Hence the petition was admitted on the common question of law, that whether a pending application for rehabilitation assistance should be considered as per O.C.S. (R.A.) Rules, 1990 or O.C.S. (R.A.) Rules, 2020.

The petitioner contends that under the rehabilitation assistance scheme, the petitioner’s application has been kept pending inordinately and in the meanwhile, when the O.C.S. (R.A.) Rules, 2020 were passed, despite the application being filed before the 2020 rules came into force, the opposite parties rejected their claim based on the new 2020 Rules instead of the 1990 Rules. It is further contended that the petitioner has not been given any reason for the delay, especially since the petitioner had submitted his application within the stipulated time, and before the new rules of 2020 came into force.

State, however, argues that the petitioner was not been able to secure the minimum qualifying points required in order to be considered eligible under the 2020 Rules. It was further contended that as per Rule 6(9) of the 2020 Rules, all pending are to be considered and disposed of under the new Rules. It was also contended, citing the judgement of the Apex court in N.C. Santosh v State of Karnataka, that application must be considered based on the law in vogue on the date of consideration of the application and not on the date of death of the deceased government employee. After perusing and analysing a catena of decisions related to the issue at hand, the High Court observed that the Apex Court in Malaya Nanda Sethy v State of Odisha & ors, has substantially dealt with a similar issue involved. In case of compassionate appointment, the Apex Court opined that for no fault of the appellants, their application was kept pending and such delay has caused great distress to the appellant. While the larger question was kept open, owing to the peculiar facts of the case compassionate appointment was given under the 1990 Rules.

The court compared both the 1990 and 2020 Rules and observed that the new Rules have a greater threshold requirement for availing the benefits than the previous rules, which are less cumbersome and more beneficial. However, both of them have been framed under Art 309 of the Constitution of India. The court also observed that and the benefits under an existing rule cannot be taken away by an amendment operating retrospectively and that an administrative action cannot curtail any right that has crystallized.

Rule 6(9) of O.C.S. (R.A.) Rules, 2020, which stipulates that all pending application shall be considered under the new Rule, was identified as the crux of the issue. The court has observed that the constitutionality of such a provision has to be tested against Art 14 and 16 of the Constitution in order to adjudicate the present case. It was opined that the Government has full freedom to take policy decisions and/or enact schemes, however, it must abide by the principles of non-arbitrariness under Art 14 of the Constitution. In the present case, the act of the authorities, in creating apparent classes wherein some candidates have been appointed under 1990 Rules while others after an inordinate delay have been asked to apply under the 2020 Rules, has been held to be non-uniform and arbitrary and the apparent classification has been held to have been made sans any intelligible differentia and is therefore untenable in law. In light of the above, it was observed that Rule 6(9) of O.C.S. (R.A.) Rules, 2020 does not pass the test of Art 14 and the apparent classification by the authorities .

In its conclusion, the writ petition was allowed by declaring the Rule 6(9) of O.C.S. (R.A.) Rules, 2020 as ultra vires of Art 14. Directions were issued to the opposite Parties to consider petitioner’s case under the 1990 Rules with further instructions to conduct the same in a time bound and transparent manner.

Bhikari Charan Rout & ors v State of Odisha & ors

Case No – O.J.C. No. 5428 of 2002
Date of Decision – 02.11.2023

This petition was filed challenging the decision of the Director, WALMI to discontinue funding of the English Medium School and inviting private/public organizations or individuals to take operational control of the school.

Petitioners contend that the decision to hand over the functioning of the school, through was objected heavily by employees of WALMI and parents, was taken without paying any heed to their grievances. It was further stated that there were no financial difficulties in running the school and any such claim is not supported by any evidence. It was contended that the school is operating with students taking admissions every year, however the teachers are not being paid their salary and, the school building/infrastructure is not being maintained properly. It was further argued that, as per the report of the Registrar of the High Court, the school is operating and the students are regularly attending classes. The petitioners further state that a letter was issued by the Collector-cum-Chairman, RTE (SSA), Cuttack to reserve 25% seats in the entry level classes for students belonging to the weaker sections and disadvantaged group. The Petitioner in view of the above contentions stated that the School is undoubtedly continuing within the WALMI campus.

Respondents argue that in an earlier petition, the Orissa High Court had settled the position that the school in question is not operational. They further argue that due to financial crunch of WALMI, a decision was taken by the Governing Council to hand over the institution to a private organization/private enterprise. It was also argued that, the WALMI is not situated in a remote place and that there exists an Odia Medium School near WALMI and that due to poor attendance of students and sub-standard teaching in the School. Moreover, since no requisite statutory certificates or permissions have been obtained for operating the school, the school, as such, is neither operating nor existing.

The court therefore sought to determine if the school was operational. To this end, the Reports from the Registrar and the various witness testimonies were considered which unequivocally hinted that the school was operational albeit in pitiable condition.

On the question of whether the present petition was hit by res-judicata or constructive res-judicata in light of earlier petitions filed, the court was of the opinion that since the earlier decision was passed in ignorance of the interim order by the Division Bench and that the issues involved in present writ were not directly and substantially in issue in the earlier petition, therefore, the present case is not hit by the Res Judicata.

To determine the validity of the act of handing over the reins of the school, the court sought recourse to The Right of Children to Free and Compulsory Education (RTE) Act, 2009, Art 45, Art 21-A and the judgement of Unni Krishnan v State of AP and other judgements, to observe that the scheme of providing free primary education is an inviolable right of the citizens, which shall be infringed in the event the administration of the school is handed over.

Therefore, the petition was allowed.

Bandhakala handloom artwork, known locally as Sambalpuri, dispalyed in the second floor corridor of New Building.