Himanshu Sekhar Das vs State Of Odisha & Ors.

“6.

In the instant case, admitted fact is that the petitioner was appointed by the managing committee against the 4th post of peon in Putineswar High School on 14.12.1991 and from that date he had been discharging his duty. His post was also duly approved by the competent authority. But after the school was taken over, the difficulty arose with regard to adjustment of the petitioner against the 4th post. Thereby, he was adjusted against the 2nd post of peon in H.C. Academy, Bhograi. The Inspector of Schools, Balasore, having found that the petitioner was adjusted there illegally, came to a conclusion that his appointment was void/invalid, and accordingly passed an order on 25.06.2001 cancelling the approval accorded to the petitioner. The said order was challenged by the petitioner before the Odisha Administrative Tribunal by filing O.A. No. 2963(C) of 2001. The tribunal, having found that the order of cancellation was passed without following the principle of natural justice, quashed the same and directed the opposite parties to allow the petitioner to continue in service but denied to pay the back wages on the principle of "no work no pay". Be that as it may, there is no dispute with regard to the fact that the petitioner was appointed against the 4th post of peon.

6.

In Rajendra Kumar Das, mentioned supra, the apex Court held that the post of Daftary, carries higher scale of pay, is to be filled up by way of promotion amongst Class-IV employee of the same institution. In paragraphs-9 and 10 of the said judgment it has been held that if a school is entitled to have a "Daftary" as per the yardstick dated 08.07.1981 or as per the yardstick dated 27.03.1992 certainly the appointment has to be made by promoting one of the three peons, i.e. Office Peon, Office Attendant and Night Watcher-cum-Sweeper. In the said case it has been further held that the Management of the concerned institution shall move the concerned authorities for approval of the promotional appointment of a Class-IV employee as "Daftary" and simultaneously, it can also recommend for appointment to Class-IV post. The decision on both motions shall be taken within three months from the date of submission of the recommendation in accordance with law keeping in view the operative yardstick in force at the time appointments were made. The apex Court further held that even if there has been refusal earlier, the matter shall be considered in the light of the said judgment.

7.

In Deepak Kumar Sahoo (Supra), this Court held that if anybody has been appointed against 4th post of peon prior to 13.11.1996 and prior to 01.01.1992 having roll strength of more than 100, his appointment as 4th peon cannot be said to be invalid as his post is admissible. The petitioner's appointment in this case was made prior to cut off date, when roll strength of School was more than 100. Consequentially, his appointment to the 4th post of peon cannot be said to be invalid in any manner.

8.

In the light of the judgment in Rajendra Kumar Das, mentioned supra, after lapse of five years of implementation of the said judgment of the apex Court, an office order dated 07.05.2008 was issued providing the modalities for promotion to the post of "Daftary" and consequential approval of 4th peon in that School as per the prevalent yardstick, which is evident from Annexure-10 to the rejoinder affidavit filed by the petitioner. Thereby, as per the law laid down by the apex Court read with the modalities provided by the State Government, vide order dated 07.05.2008, large number of 4th Peons have been approved in those Schools. This fact is elucidated in Annexure-10 to the rejoinder affidavit filed by the petitioner. As such, there is no denial of such document by filing any reply by the opposite parties. After approval of 4th peon in consequential vacancy, this Court directed for payment of their salary in the interregnum period as per the judgment of this Court in Prasanna Kumar Rout vs. State of Odisha and others (WP (C) No.3472 of 2014 disposed of on 30.10.2017).

9.

So far as the case in hand is concerned, instead of approving the post of the petitioner as a 4th peon in the consequential vacancy, his appointment was cancelled in gross violation of principle laid down by the apex Court in Rajendra Kumar Das and Deepak Kumar Sahoo, mentioned supra, which cannot sustain in the eye of law.

10.

In view of the law laid down by the apex Court, as well as this Court and as per the resolution passed by the Government, on the point in issue, the order dated 11.03.2013 passed by the District Education Officer in Annexure-8 cancelling approval of the post held by the petitioner, cannot sustain in the eye of law. Thereby, the said order is liable to be quashed and is accordingly, quashed. The matter is remitted back to the District Education Officer, Balasore with a direction to approve the appointment of the petitioner against the post of 4th peon as per the yardstick laid down in order dated 08.07.1981, which was in force, and since the roll strength of the school was more than 100, the post of 4th peon, against which the petitioner was appointed, was justified as per the yardstick. The entire action shall be taken as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment.

11.

The writ petition is allowed. No order to costs.”

“Hence, pursuant to the order dtd. 08.09.2021 of the Hon'ble High Court, Odisha, letter No.8115/SME Dtd. 19.03.2025 of the School & Mass Education Department, Odisha, Memo No.8116/SME Dtd. 19.03.2025 of the School & Mass Education Department, Odisha and letter No. 8534 Dtd. 02.04.2025 of the Director, Secondary, Education, Odisha, the approval of appointment of Sri Himanshu Sekhar Das as 4^th Peon is hereby restored w.e.f. 19.05.1995 and Sri Das is entitled to get arrear salary for the period he actually performed duty in the School till his retirement.”

“28.

The next question is, as to what benefits the appellant is entitled to. As he withdrew the resignation and yet he was not allowed to work, he is entitled to all consequential benefits. The learned counsel for the respondent Company no doubt contended that after 15-1-1993, the appellant had not actually worked and therefore, even if this Court holds that the action of the respondent Company was not in consonance with law, at the most, the appellant might be entitled to other benefits except the salary which should have been paid to him. According to the counsel, the principle of “no work, no pay” would apply and when the appellant has admittedly not worked, he cannot claim salary for the said period.

29.

We must frankly admit that we are unable to uphold the contention of the respondent Company. A similar situation had arisen in J.N. Srivastava [(1998) 9 SCC 559 : 1998 SCC (L&S) 1251] and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II [(2002) 3 SCC 437 : 2002 SCC (L&S) 444] also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to “full salary and allowances” of the entire period he was kept out of service. In Balram Gupta [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] in spite of specific provision precluding the government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.

30.

For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The action of the respondent Company in accepting the resignation of the appellant from 4-1-1993 and not allowing him to work is declared illegal and unlawful. It is, therefore, hereby set aside. The orders passed by the learned Single Judge and the Division Bench upholding the action of the Company are also set aside. The respondent Company is directed to treat the appellant in continuous service up to the age of superannuation i.e. 31-12-1994 and give him all benefits including arrears of salary. The Company may adjust any amount paid to the appellant on 15-1-1993 or thereafter. The appeal is accordingly allowed with costs.”

“15.

The petitioner has never expressed her unwillingness to work in the organisation. In the peculiar circumstances of sexual harassment, she only sought for leave but her service was terminated for no fault of her. Therefore, she is entitled to get all her arrears of salary and other emoluments including increments and other pecuniary benefits as the opposite party No.2 has arbitrarily terminated her service on account of which she was been forced to remain unemployed. xxx xxx xxx”