The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13485 2007 Dr. Rabinarayan Patnaik (since dead) through his L.Rs. …. Petitioners Mr. Rajendra Krushna Bose, Advocate -versus- State of Odisha & others …. Opposite Parties Ms. Suman Pattnaik, AGA (for O.P.1) Mr. Somanath Mishra, Advocate (for O.P.2) CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. 09. ORDER 22.08.2025 1. Flagging apathetic attitude of the Odisha State Housing Board, opposite party No.2, in not extending the benefit of deputation allowance in favour of the deceased-petitioner despite willingness shown by the Delhi Development Authority (DDA), where the petitioner is deputed to work, to pay the deputation allowance in terms of the norms of Deputation Allowance as extended to the Central Government employees on deputation, the deceased-petitioner has preferred this writ petition with the following prayer(s):- “Your humble petitioner therefore, prays that this Hon’ble Court will be kind enough to admit this application for hearing, issue notices to the Opp. parties and after their appearance or non appearance and on their filing or non-filing of show cause may allow this writ application giving a direction to the Opp. Party No.2 to modify the Item No.3 of annexure-9. And further direct Opp. Party No.3 to pay the deputation allowance as being paid to deputation employees serving with Opp. Party No.3. And further the Hon’ble Court may direct to pay the deputation allowance within a stipulated time period. W.P.(C) No.13485 of 2007 Page 1 of 10 And may pass such other order/orders as deem fit just and proper in the interest of the justice. And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. Upon issue of notice vide Order dated 06.12.2010, M/s. Somanath Mishra and Girija Tripathy, Advocates entered appearance on behalf of the opposite party No.2-Odisha State Housing Board and on 30.07.2015, at its behest adjournment was sought for, which was allowed. As the record reveals, subsequently, on 04.01.2024, 09.01.2024, 08.02.2024 and 01.08.2025 this matter was listed for further proceeding, yet neither the opposite party No.2 nor the opposite party No.1 has chosen to file response. 2.1. Noticeably, during the pendency of this matter, the petitioner, since dead, has been substituted by legal heirs to pursue the matter. 2.2. Since no response is forthcoming notwithstanding several opportunities as mentioned above, this Court on consent of appearing counsel for both the sides, proceeds to hear the matter and dispose of. 2.3. This Court is not oblivious of the effect of non-filing of response as discussed in Lohia Properties (P) Ltd. Vrs. Atmaram Kumar, (1993) 4 SCC 6, wherein it has been observed as follows:
Legal Reasoning
“14. What is stated in the above is, what amounts to admitting a fact on a pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth. 15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any W.P.(C) No.13485 of 2007 Page 2 of 10 allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted. 19. Non-traverse would implied admission. In the facts of this case the findings of the trial court and that of the first appellate court could be upheld on this admission.” constitute an 2.4. In the case of Omsairam Steels and Alloys Pvt. Ltd. Vrs. Director of Mines and Geology, BBSR, AIR 2024 SC 3410 at paragraph 18 it has been observed as follows: to the “The present case notably has certain features on facts, which makes it distinguishable from the case in West Bengal State Electricity Board Vrs. Patel Engineering Co. Ltd. (2001) 2 SCC 451 = AIR 2001 SC 682. Here, it is not disputed that the Appellant made multiple calls first Respondent immediately upon realising that it had committed an error. Specific averments made by the Appellant are present in the pleadings that upon realisation of its mistake, telephone calls were made to the first respondent, as well as to the helpline numbers of the second respondent, both of which went unanswered. The respondents, in their counter affidavit, have the said averments; hence, by not specifically denied application of the doctrine of non-traverse, the aforementioned the averments are deemed respondents.” to have been admitted by 2.5. A Division Bench of this Court in Pratap Kumar Jena Vrs. Government of Odisha, 2016 SCC OnLine Ori 830 held as follows: “26. In Pyrites Phosphates & Chemicals Ltd. Vrs. State of Bihar, AIR 1998 Pat 57, the High Court of Patna held as follows: W.P.(C) No.13485 of 2007 Page 3 of 10 ‘One cannot be allowed to frustrate the process of the Court by adopting the easy option of non appearing despite valid service of notice. On the basis of doctrine ‗non-traverse‘ i.e. acceptance by non-denial, it was held that the claim of the petitioner is not denied but accepted by the respondents.’ the present case 27. Applying the very principle of non-traverse to the present context, since the opposite parties have not filed the counter affidavit in to controvert the contention raised in the writ application, the facts which have been pleaded by the petitioner are deemed to be admitted. Therefore, any argument advanced by the learned counsel appearing for the opposite parties cannot sustain in absence of any pleadings thereof.” 2.6. In the case of Debendra Ram Vrs. Food Corporation of India, 2015 (I) OLR 1093 = 120 (2015) CLT 465 this Court held as follows:
Legal Reasoning
“Considering the contention raised by learned counsel for the parties and after going through the records, since no materials has been placed before this Court by the opposite parties and since there is no rebuttal contention raised by the opposite parties, applying the principles of doctrine of non- traverse, this Court proceeded with the matter on the basis of the materials available.” 2.7. It is not the case of the opposite parties that they had been under disability nor can the State instrumentalities be said to be under some disability. No explanation was ever furnished as to why the counter affidavit had not been filed. Such parties cannot be permitted to take advantage of their own mistake. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpetudinem non est audiendus’. If the parties have committed a wrong by not filing the counter affidavit, they cannot be permitted to take the benefit of their own wrong. (Vide W.P.(C) No.13485 of 2007 Page 4 of 10 G.S. Lamba Vrs. Union of India, AIR 1985 SC 1019; Narender Chadha Vrs. Union of India, AIR 1986 SC 638; Jose Vrs. Alice, (1996) 6 SCC 342; and T. Srinivasan Vrs. Mrs. T. Varalakshmi, (1998) 3 SCC 112). Therefore, a person approaching the Court has to satisfy that his action/inaction was lawful, otherwise, he cannot be heard. In such an eventuality, the legal maxim ‘ex turpi causa non oritur actio’ applies. 2.8. If the counter affidavit is not filed, the matter is required to proceeded with on the basis of the averments in the petition. As has already been made it clear that despite appearance of the opposite party Nos.1 and 2 represented through their respective counsel, none of the opposite parties has preferred to proffer any reply/explanation by way of counter affidavit objecting the contentions and averments contained in the writ petition. Therefore, this Court has no other alternative but to construe that the opposite party No.1 and the opposite party No.2 has conceded to what has been averred by the petitioner. 2.9. Having thus the above eminent legal position, heard Sri Rajendra Krushna Bose, learned counsel appearing for the petitioners, Ms. Suman Pattnaik, learned Additional Government Advocate appearing for opposite party No.1 and Sri Somanath Mishra, learned counsel appearing for opposite party No.2. No one represented at the time of call on behalf of opposite party No.3 in spite of issuance of notice. Since this matter is of the year 2007 and in the meantime more than one and half decade has already been elapsed and the original petitioner is dead (in his place the legal heirs have been substituted vide order dated 08.02.2024), this Court is, therefore, inclined to dispose of this matter on the basis of available material and oral arguments advanced by the counsel. W.P.(C) No.13485 of 2007 Page 5 of 10 3. Sri Rajendra Krushna Bose, learned counsel appearing for the petitioners submitted that Dr. Rabi Narayan Patnaik, the deceased- petitioner, joined in Odisha State Housing Board on 16.01.1989 and deputed to the Delhi Development Authority for a period of three years in the year 2001 vide Office Letter No.F.7(32)2001-P.B.I/2080 dated 12.10.2001 (Annexure-6). Accordingly, he was relieved from his duties with effect from 14.12.2001 vide Office Order dated 13.12.2001 issued by the Land-cum-Administration Officer, Odisha State Housing Board. The terms of deputation as sanctioned by the Odisha State Housing Board have been reflected in Letter No.SE-121/95 dated 16.03.2002. 3.1. Sri Rajendra Krushna Bose, learned counsel appearing for the petitioners laid stress on following clause found mentioned in the aforesaid Letter dated 16.03.2002: “03. During the period of deputation the concerned officer have the option either to get his pay fixed in any scale of offered by Delhi Development Authority or to draw his grade pay in the existing scale of pay. No deputation allowance is admissible.” 3.2. A representation was made to the Odisha State Housing Board by the deceased-petitioner on 16.09.2002 indicating that the Delhi Development Authority, which is owned by the Government of India, extends deputation allowance to its employees, which he sought to be extended to him inasmuch as the Delhi Development Authority is inclined to extend the said benefit provided the Odisha State Housing Board modifies the aforesaid clause contained in the Letter dated 16.03.2002. Accordingly, it is stated that, a letter was issued by the Delhi Development Authority (Personnel Branch-I) suggesting for rectification W.P.(C) No.13485 of 2007 Page 6 of 10 of mistake in the terms and conditions on deputation. The text of said Letter dated 10.10.2002 is reproduced here below: “Dear Sir, I am enclosing herewith the representation received from Dr. R.N. Patnaik, Director (Finance) of this Organization, and to request you to suitably modify Item No.3 of his terms and conditions of deputation communicated to this Organisation which inter-alia includes a clause on payment of deputation allowance. In this connection, it is brought out that as per Rules of Govt. of India being followed in DDA, Deputation Allowance is admissible to its Officers and staff on deputation at the prescribed rates. An early communication in this matter is requested.” 3.3. Sri Bose, learned counsel for the petitioners vociferously advanced his argument by urging that despite such request made by the Delhi Development Authority to suitably modify the clause restricting deputation allowance inclined to be paid by it as the deceased-petitioner was entitled to such benefit of deputation allowance, the Odisha State Housing Board, opposite party No.2 remained adamant and denied such benefit vide Letter dated 25.11.2002 (Annexure12). He, hence, submitted that as no pecuniary loss would be caused to the Odisha State Housing Board nor the Government of Odisha by rectifying aforesaid Clause-3 of Letter dated 16.03.2002 by conceding for allowing deputation allowances, the opposite party No.2 should not have restrained itself from doing the needful. Therefore, he fervently insisted to allow the
Decision
prayer made in the writ petition. W.P.(C) No.13485 of 2007 Page 7 of 10 4. Sri Somanath Mishra, learned counsel appearing for opposite party No.2 per contra strongly opposed the aforesaid contentions of Sri Rajendra Krushna Bose, learned Advocate and submitted that it is the stand of opposite party No.2 through Letter dated 16.03.2002 that no deputation allowance is to be allowed to the petitioner, by virtue of which he had joined the place to which he was deputed. The State Government has never allowed such deputation allowance to any of its officers or staff on deputation. Therefore, amending such clause to extend the benefit to the petitioner would open the floodgates. Sri Somanath Mishra, learned Advocate for the opposite party No.2, was suave in his submission to state that since the deceased-petitioner had accepted the terms and conditions contained in Letter dated 16.03.2002 and joined in the place of deputation, i.e., Delhi Development Authority, he was aptly not extended such benefit being not entitled to even claim for deputation allowances. 5. 6. Perused the record and considered the submissions. It is manifest from perusal of Letter dated 16.03.2002 that under Clause-3, the petitioner (deceased) is not allowed to avail the benefit of the deputation allowance by the Odisha State Housing Board, but request has been made by the Delhi Development Authority for appropriately modify such in consonance with the Rules of the Government of India, which is followed in the said Organization by granting deputation allowance to its officers and staff on deputation at the prescribed rates. 6.1. In such perspective, on the basis of conceded position by counsel for the appearing parties as perceived by this Court no pecuniary loss would ensue to the State Exchequer by extending such benefit as the W.P.(C) No.13485 of 2007 Page 8 of 10 deputation allowance is inclined to be disbursed by the Delhi Development Authority as per the prescribed rates in terms of the Rules of the Government of India, as suggested in the Letter dated 10.10.2002. It is the Odisha State Housing Board, opposite party No.2, which is required to modify said clause suitably to facilitate payment of such deputation allowance by the Delhi Development Authority to the petitioner(s). In this regard this Court does not find any impediment or plausible explanation on the part of the Odisha State Housing Board not to do the needful in terms of request made by the Delhi Development Authority through Letter dated 10.10.2002. 6.2. Appreciating the peculiar facts and circumstances of the case and in view of the suggestion given by the Delhi Development Authority vide letter dated 10.10.2002 (Annexure-11) and bearing in mind that no objection has been filed to the averments contained in the writ petition despite the fact that the opposite party No.2-Odisha State Housing Board entered appeared in the present case through its counsel way back in 2011 in pursuance of notices being served on it on 01.01.2011, it is felt expedient dispose of the writ petition with following directions: i. The opposite party No.2 (Odisha State Housing Board) shall suitably modify Clause-3 of Letter dated 16.03.2002 in tune with the request made by the Delhi Development Authority (opposite party No.3) in its Letter dated 10.10.2002 within a period of two months from date and communicate the same to the opposite party No.3 forthwith; ii. The Delhi Development Authority (opposite party No.3) after receiving such communication from the opposite party No.2 (Odisha State Housing Board) shall take steps to disburse the amount admissible W.P.(C) No.13485 of 2007 Page 9 of 10 towards the deputation allowances of the petitioner (the employee, since dead, being substituted by the legal heirs) within a period of one month thereafter. 7. With the aforesaid observation and directions, this writ petition is disposed of. (M.S. Raman) Judge MRS Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Aug-2025 12:32:13 W.P.(C) No.13485 of 2007 Page 10 of 10