Service abandonment for over five years warrants appointment of another candidate in the vacancy; prior approval for termination is mandatory.

JUDGMENT :

DIXIT KRISHNA SHRIPAD, J.

Both these petitions, i.e., one by the employee and another by the Management of the Institution seek to call in question the judgment dated 17.05.2023 entered by the State Educational Tribunal in Appeal No.14 of 2007. This appeal was filed by private OP, namely, Susanta Kumar Sahoo under Section 24B of the Odisha Education Act, 1969 for laying a challenge to his removal from service.

2. FACTS IN BRIEF

(a) Petitioner Aided Institution had appointed the companion petitioner as Lecturer in Physics vide order dated 01.11.1993 against the existing vacancy. The said appointee had remained unauthorized absent during the period between 09.07.2001 and 01.07.2007, when his marital litigations were stated to be going on both before the Family Court & Criminal Court, of course, which eventually ended in a peace accord.

(b) During the above interregnum of absence, the private OP herein came to be selected & appointed to the eventual vacancy vide order dated 31.08.2002. This was preceded by a public advertisement and a walk-in interview as well. After the abandoner reverted to employment, the Management removed the private OP from service w.e.f. 26.04.2007 and that is how the dispute was raised in Appeal No.14 of 2007 before the Tribunal.

(c) A formal order of termination was issued to the private OP herein on 14.08.2007. Therefore, appeal memo came to be amended by him. The appeal came to be allowed by the Tribunal vide order dated 15.04.2010. Petitioner-Lecturer had filed MJC No. 20 of 2010 before the Tribunal and that was dismissed on 23.10.2010. Therefore, he filed WP(C) No. 22207 of 2011 that came to be allowed vide order dated 01.02.2019 remitting the matter back to the Tribunal for fresh consideration. Private OP’s Writ Appeal No. 92 of 2019 against the same came to be negatived on 23.11.2022.

(d) The Tribunal, after hearing all the parties including the petitioners herein, again allowed the subject appeal vide order dated 17.05.2023, which is put in challenge in these petitions. Since common questions of fact & law are involved, both the petitions are taken together for final disposal with consent.

3. Having heard learned counsel for the parties and having perused the petitions papers this Court declines indulgence in the matter broadly agreeing with the reasoning of the Tribunal and also adding its own reasons as under:

3.1. The first submission of learned counsel for the petitioners that there was no vacancy in the post of Lecturer in Physics, the present incumbent just having been away from employment, OP No.4 cannot claim to have been appointed on substantive basis, is difficult to agree with. There is no dispute that OP No.4 was eligible & qualified for appointment in question. It is on record that the petitioner-Lecturer having been involved in matrimonial litigations, both civil & criminal, was away from employment during a long period of about six years, i.e., between 09.07.2001 & 01.07.2007. No material is produced to show that he had applied for leave, much less sanctioned one. It is a text book case of abandonment of service eventually creating a regular vacancy, to which OP No.4 came to be selected & appointed.

3.2. Learned counsel appearing for OP No.4 is more than justified in pressing into service Rule 72(2) of Odisha Service Code, which reads as under:

“72. REMOVAL OF GOVERNMENT SERVANT AFTER REMAINING LEAVE FOR A CONTINUOUS PERIOD EXCEEDING FIVE YEARS.

(1) xxx xxxx xxxx

(2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a government servant after the expiry of his leave remains absent from duty otherwise than or foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall