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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.20713 of 2016 And W.P.(C) Nos.22554 of 2017 (Applications under Articles 226 and 227 of the Constitution of India) In W.P.(C) Nos.20713 of 2016 Rashmi Ranjan Das and others … Petitioners -versus- State of Odisha & another … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.B. Routray, Sr.Advocate -versus- For Opposite Parties : Mr. N. Pratap, Addl. Standing Counsel In W.P.(C) Nos.22554 of 2017 Kishore Chandra Majhi … Petitioner -versus- State of Odisha & another … Opposite Parties Advocates appeared in the case through hybrid mode: Page 1 of 18 For Petitioner : Mr.Bikash Mishra, Advocate -versus- For Opposite Parties : Mr. N. Pratap, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 14.3.2023. Sashikanta Mishra,J. Both these Writ Petitions involve similar facts and therefore were heard together and are being disposed of by this common judgment. 2. The Petitioners were appointed as Demonstrators in different disciplines by the respective Governing Bodies of different Non-Government Aided Colleges against admissible and justified posts. The Government of Odisha formulated Odisha (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant- in-Aid Order, 1994 (for short “GIA Order, 1994) for payment of Grant-in-Aid to different Teaching and Non-Teaching staffs. Clause-8 of the said order W.P.(C) No. 20713 of 2016 Page 2 of 18 stipulated that no GIA shall be payable to Demonstrator, Laboratory Attendant or any post connected with laboratory work on any date prior to the date of approval of a post of Lecturer in that subject. Further, the Government enacted the Odisha Aided Educational Institution (Appointment of Lecturers Validation) Act, 1998 to validate the appointment of Lecturers made by the Governing Bodies between 1st January, 1985 to 31st December, 1992. As a result the services of several Lecturers were validated. The Petitioners thereafter, submitted several representations for coming under the GIA fold but no action was taken. One Pradip Kumar Sutar approached the State Education Tribunal in an application under Section 24-B of the Odisha Education Act being GIA Case No.20/2009, which was allowed by the learned Tribunal on 7th June, 2011 directing the concerned authorities to approve his appointment by taking into consideration the stipulation in Clause-8 of the GIA Order, 1994. The State Government preferred an appeal before this W.P.(C) No. 20713 of 2016 Page 3 of 18 Court being FAO No.614/2012. As the Petitioners stand on the same footing as Pradip Kumar Sutar, they were permitted to intervene in the appeal and were arrayed as respondents. By order dated 27th March, 2014 the appeal was dismissed. The State Government preferred SLP (C) No.18170-18171 of 2014 which was also dismissed by order dated 17th November, 2014. In view of such dismissal of the SLP, the Director, Higher Education, Bhubaneswar (Opposite Party No.2), accorded approval on 27th December, 2014 and GIA w.e.f. 17th October, 2014 in favour of three Demonstrators. Since the Petitioners are similarly placed, they moved the authorities time and again. Ultimately, the Opposite Party No.2 by order dated 19th June, 2015, approved the services of the Petitioners w.e.f. their initial date of joining and sanctioned GIA w.e.f. their eligibility. Such order was passed on 14th May, 2015. It was mentioned in the said orders that the current salary at the rate as admissible to the Petitioners may be released from the current financial year and so far as the arrear claim is concerned, the W.P.(C) No. 20713 of 2016 Page 4 of 18 same may be calculated as per actual differential by deducting the salary received by the incumbent from the State Government. Accordingly, the Principals of the concerned Colleges were directed to furnish current and arrear salary bills. While the matter stood thus, the State Government issued another approval order on 25th June, 2015 modifying the earlier order to restrict the arrear claim to only three years before the date of filing of the Writ Petition/Intervention Application purportedly following the ratio of the judgment passed by the Apex Court in the case of Union of India and others v. Tarsem Singh; C.A. No.51511-5152 of 2008 (S.L.P (C) Nos.3820-3821 of 2008. Pursuant to such order of approval, the Opposite Party No.2 issued office order on 28th December, 2015 accordingly. It is stated that no opportunity of hearing was issued to the Petitioners before modifying the approval order. Further, the application of the ratio in Tarsem Singh’s case is entirely fallacious. Being thus aggrieved, the Petitioners have approached this Court seeking the following relief; W.P.(C) No. 20713 of 2016 Page 5 of 18 “It is therefore most humbly prayed that this Hon’ble Court be graciously pleased to (i)admit the writ application, (ii)call for the record, (iii)issue Rule Nisi calling upon the Opp. Parties to show cause as to why the impugned order dated 25.6.2015 issued by opposite party No.1 particularly clause no.3 thereof and the consequential office order dated 28.12.2015 issued by opposite party no.2 under Annexure-5 series shall not be quashed, or (iv)if the opposite parties fail to show cause or show insufficient cause make the rule absolute and issue a writ in the nature of other certiorari writ/writs/direction/directions quashing the order dated 25.6.2015 issued by opposite party no.1 particularly clause no.3 thereof and the consequential order dated 28.12.2015 issued by opposite party no.2 under Annexure-5 series, any or (v)Issue a writ in the nature of other any mandamus writ/writs/direction/directions directing the opposite parties to restore the approval order which has been accorded in favour of the petitioners on 14.5.2015 and 19.6.2015 respectively according approval in favour of the petitioners and to give all the arrear financial benefits salary in terms of such approval order under Annexure-4 series within a reasonable time to be stipulated by this Hon’ble Court, including W.P.(C) No. 20713 of 2016 Page 6 of 18 (vi)direct the opposite parties to give similar benefits as has been extended to other under similarly Annexure-7 series and employees situated (vii)and/or pass any other order/orders, direction/directions as this Hon’ble Court deems fit and proper for the ends of justice”. 3. The Opposite Party No.1 has filed counter affidavit wherein the basic facts averred in the Writ Petition relating to appointment of the Petitioners, approval of their appointment and sanction of GIA etc. have been admitted. The impugned orders are however sought to be justified on the ground that the Petitioners not having approached the Tribunal at the relevant time but having intervened in the appeal filed by the State at the belated stage, the ratio of Tarsem Singh applies in full force and therefore, the arrear claim has been rightly restricted to only three years prior to the date of
Decision
filing of the Writ Petition/Intervention Application. 4. The Petitioners have filed rejoinder basically stating that the ratio of Tarsem Singh cannot be applied because of the fact that the Petitioner therein had W.P.(C) No. 20713 of 2016 Page 7 of 18 approached the Court after delay of 16 years and therefore, the Apex Court restricted the claim to three years prior to filing of the case. In the said judgment, the Apex Court has not laid down any law that all cases of arrear claims should be restricted to only three years prior to the date of making of the claim. 5. Heard Mr. B. Routray, learned Senior counsel with Mr.S.D. Routray, learned counsel, for the Petitioners and Mr. N. Pratap, learned Addl. Standing Counsel for the State. 6. Mr. B. Routray has argued that the impugned orders were passed without affording any opportunity of hearing whatsoever to the Petitioners. Once the authorities had approved and sanctioned the benefits in a particular manner, they could not have modified the same to the detriment of the Petitioners unilaterally. To such extent therefore, the impugned order cannot be sustained in the eye of law. Mr. Routray further contends that even otherwise, the ratio of Tarsem Singh cannot be made applicable to the W.P.(C) No. 20713 of 2016 Page 8 of 18 facts of the present case since the Petitioners had approached the authorities time and again at the relevant time and even though they had not approached the Tribunal themselves yet, in the appeal preferred by the State against the order passed by the Tribunal in favour of a person similarly placed, the Petitioners were permitted to intervene and were arrayed as parties. Further, while disposing of the appeal, this Court in its order dated 27th March, 2014- passed in F.A.O. No.614/2012 has specifically held that all the Respondents are entitled to the benefits as decided by the Tribunal. Taking this Court to the judgment of Tarsem Singh (supra) Mr. Routray submits that in the said case, the Petitioner (Tarsem Singh) had approached the Court 16 years after his retirement which prompted the Apex Court to restrict the benefit to only three years prior to filing of such case. Secondly, the Apex Court has clarified under Paragraph-5 that the order restricting the benefits should be passed in cases where 3rd party rights are likely to be affected. In the instant case, there is no W.P.(C) No. 20713 of 2016 Page 9 of 18 such situation. Mr. Routray therefore, sums up his argument by contending that the impugned orders cannot be sustained in the eye of law. 7. Mr. N. Pratap, learned Addl. Standing Counsel for the State, has justified the issuance of the impugned order by submitting that the Petitioners are nothing but fence-sitters and therefore, cannot be allowed to get the benefits granted to persons who had approached the Court in time. The Petitioners remained quiet for a long time and only because a favourable decision was passed in the case of Pradip Kumar Sutar, they sprung into action and sought intervention in the appeal filed by the State against the judgment of the Tribunal. Notwithstanding the fact that the Petitioners were impleaded as parties to the appeal, the same cannot confer on them the same status as that of the other respondents who had approached the Tribunal so as to get the intended benefits. W.P.(C) No. 20713 of 2016 Page 10 of 18 8. In view of the rival contentions as noted above, it would be proper to first take up the ground raised by the State counsel that the Petitioners being fence sitters are not entitled to the relief claimed. It has been argued in this context that the Petitioners had never approached the Tribunal ventilating their grievance, but only when the Tribunal passed a favourable judgment in the case filed by another person, the Petitioners sought intervention in the appeal preferred by the State against the said judgment of the Tribunal apparently to take benefit thereof. It is true that the Petitioners had not approached the Tribunal on their own accord, but they were impleaded as parties in the appeal preferred by the State. Interestingly in the order dated 19th June, 2015 (enclosed as Annexure-4 series) of the Director the Petitioners and some others were granted similar relief by specifically stating that the same was pursuant to the order dated 24th April, 2014 passed in Misc. Case No.340/2014 arising out of F.A.O. No.614 of 2012 by the High Court which was confirmed by order dated 17th November, 2014 of the W.P.(C) No. 20713 of 2016 Page 11 of 18 Apex Court in S.L.P.(C.C) No.18170-18171 of 2015. Thus, the Government extended the benefits by itself treating the Petitioners as being covered by the judgment passed by this Court in F.A.O. No.614/2012. Therefore, it is no longer open to it to turn around subsequently and take the plea that the Petitioners are fence sitters. If the Government held the Petitioners to be fence sitters, where was the reason much less occasion to extend the benefits to them as per order passed in F.A.O.No.614/2012? But having done so, it is estopped from taking the contrary stand. In any case, neither the Tribunal nor this Court in F.A.O. No.614/2012 had restricted the benefits to only three years before filing of the applications/appeal. Since the order of the Tribunal was confirmed by this Court in appeal as well as by the Apex Court, it is not open to the Government to unilaterally modify the same by restricting the benefits in any manner whatsoever. The contention raised by the State counsel is therefore, not tenable. W.P.(C) No. 20713 of 2016 Page 12 of 18 9. Another important aspect of the matter is the unilateral action taken by the Government to restrict the benefits to only three years prior to filling of the application/appeal in supersession of the earlier order whereby the benefits had been granted from the date of their joining. Undoubtedly, the subsequent order (Annexure-5) in restricting the benefits operates to the detriment of the Petitioners, but neither any notice was issued to the Petitioners nor any opportunity of hearing was granted to them before issuing the same. This militates against the principles of natural justice particularly when a positive benefit granted to an employee is subsequently sought to be taken away/restricted. Law is well settled in this regard that such action cannot be countenanced in law. Reference in this regard can be profitably made to the celebrated decision of the Apex Court in the case of State of Odisha vs. Dr. (Mrs.) Binapani Dei; reported in AIR 1967 SC 1269, wherein it was observed as follows; “ W.P.(C) No. 20713 of 2016 Page 13 of 18 to correct or “ xxx xxx xxx xxx xxx xxx xxx An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that in purpose the person against whom enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set- up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance W.P.(C) No. 20713 of 2016 Page 14 of 18 thereof transcends the significance of a decision in any particular case.” 10. Coming to the applicability of the decision of the Apex Court in the case of Tarsem Singh (supra), it would be apposite to refer to the relevant observations in said judgment at the outset. Be it noted here that the said case was one in which the Petitioner had approached the Court 16 years after his retirement. After analyzing the law relating to entertaining belated claims, the Apex Court summarized its findings in Paragraph-5 of the judgment, which is quoted herein below; “5. To summarise, normally a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service relates claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative continuing wrong creates W.P.(C) No. 20713 of 2016 Page 15 of 18 decision which relates to or affected several other also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render of the laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. and doctrine claim stale 11. A bare reading of the afore quoted observations of the Apex Court would make it clear that if the case relates to re-fixation of pay and such like benefits may be granted in spite of delay as it does not affect the rights of third parties. There is no dispute that the benefit in question being basically re-fixation of pay in terms of the GIA Order, 1994 is in the nature of an individual benefit granted to an eligible employee on fulfilment of certain conditions and as such, does not apply to all the employees at large. A co-ordinate W.P.(C) No. 20713 of 2016 Page 16 of 18 Bench of this Court in the case of Swarnalata Sahoo v. State of Orissa and others (W.P.(C) No.19445/2016) analyzed the ratio decided in the case of Tarsem Singh (supra) and held that there was no justification on the part of the Opposite Parties in issuing the impugned orders in supersession of the earlier orders purportedly in terms of the judgment in Tarsem Singh (supra). This Court is therefore, of the considered view that the ratio of Tarsem Singh (supra) has been wrongly applied to the case of the Petitioner for which the impugned order is rendered unsustainable in the eye or law. 12. Thus, on a conspectus of the analysis of facts and law involved in the case and the discussion made hereinbefore, this Court finds that the Petitioners have made out a good case for interference. Resultantly, the Writ Petitions succeed and are therefore, allowed. The impugned order under Annexure-5 is hereby quashed. The Opposite Party-authorities are directed to extend the benefits to the Petitioners as granted by order W.P.(C) No. 20713 of 2016 Page 17 of 18 dated 14th May, 2015 under Annexure-4 within a period of three months. ………..…….……………. Judge Sashikanta Mishra, Ashok Kumar Behera W.P.(C) No. 20713 of 2016 Page 18 of 18 W.P.(C) No. 20713 of 2016 Page 19 of 18 W.P.(C) No. 20713 of 2016 Page 20 of 18