The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.6136 of 2023 Kishore Chandra Sahu …. Petitioner Mr. P. Panda, Adv. -versus- State of Odisha & Others … Opp. Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 18.04.2024 8. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Legal Reasoning
Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dt.28.12.2022 so passed by Government-Opp. Party No.1 under Annexure-7. Vide the said order, claim of the Petitioner to get the benefit of regularization with effect from her initial date of appointment i.e. 20.11.1998 was negatived. 4. It is the case of the Petitioner that Petitioner was initially appointed as Primary School Teacher vide order of appointment issued on dt.20.11.1998 under Annexure-1. While so continuing in terms of the said order, Petitioner along with others were terminated vide Office order dt.31.12.1999 under Annexure-2. 4.1. Petitioner challenged the order of termination in OA No.97 (C ) of 2000. Basing on a common order passed by the Tribunal in OA No.2583(C) of 1999 and batch and subsequent direction issued by the Government-Opp. Party No.1 vide letter dt.29.06.2011, Petitioner was allowed to rejoin in her services vide order dt.27.06.2012 under Annexure-3 of Opp. Party No.3. 4.2. It is contended that since vide order dt.27.06.2012 under Annexure-3 Petitioner was allowed to rejoin in his work and posted in the school, his services should have been taken w.e.f 20.11.1988 in place of 27.04.2012. Petitioner initially claiming similar benefit as has been extended in favour of one Sudam Tandi approached this Court in W.P.(C ) No.27139 of 2021. This Court when directed to take a decision on the claim of the petitioner, the same was rejected vide order dt.27.10.2022 under Annexure-5. 4.3. Subsequently, when petitioner came to know that similarly situated person so terminated has got the benefit of regularization with effect from her initial date of appointment, Petitioner again approached the Opp. Parties seeking similar benefit. 4.4. It is contended that Petitioner prays for such benefit before Opp. Party No.1, taking into account the benefit extended in favour of one Sipra Kumari Parida who is similarly situated and also terminated while continuing as a Primary School Teacher in the year 1999 and was re- appointed on 09.07.2011. 4.5. Learned counsel for the Petitioner contended that similar claim of retrospective regularization w.e.f
Legal Reasoning
09.11.1999 to 09.07.2011 was allowed in favour of Smt. Sipra Kumari Parida basing on an order passed by this Court in W.P.(C ) No.10071 of 2018. Even though this Court in W.P.(C )No.29034 of 2020 directed for consideration of the Petitioner’s claim, as has been extended in favour of Smt. Sipra Kumari Parida, but the Page 2 of 7 said claim has been rejected by Opp. Party No.1 vide the impugned order under Annexure-7.. 4.6. It is contended that though in the impugned order, the benefit extended in favour of Smt. Sipra Kumari Parida has not been disputed, but on the ground of negative equality, Petitioner’s claim has been rejected. 4.7. It is also contended that since similar benefit has been extended in favour of similarly situated employee , in view of the decision of the Hon’ble Apex Court in the case of State of Uttar Pradesh & Others Vs. Arvind Kumar Srivastav & Others, reported in (2015) 1 SCC 347) petitioner is entitled to get the similar benefit. Hon’ble Apex Court in the case of Arvind Kumar Srivastav in Para 22 and 23 of the decision has held as follows:- “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in Page 3 of 7 time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated 22-6-1987. The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of there cancellation orders. Therefore, not only was unexplained delay and laches in filing the claim petition after Page 4 of 7 a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.” 5. Mr. S. Rath, learned Additional Standing Counsel on the other hand contended that even though Petitioner was initially appointed vide order of appointment issued on 20.11.1998, but number of Primary School Teachers so appointed by the then Inspector of School were terminated from their services on different dates. Petitioner along with others were also terminated from their services vide Office order dt.31.12.1999 under Annexure-2. 5.1. However, basing on the order passed by the Tribunal in OA No.2583(C ) of 1999 and batch and subsequent direction issued by the Government on 29.06.2011, Petitioner was allowed to rejoin vide order issued on dt. 27.06.2012 under Annexure-3. Since petitioner was allowed to rejoin vide order dt. 27.06.2012 and he remained out of employment from the date of termination i.e. 31.12.1999 till 27.06.2012, he is not eligible to get the benefit of regularization from his initial date of engagement. It is accordingly contended that the claim of the Petitioner has been rightly rejected vide order under Annexure-7. 5.2. However, it is fairly contended that similar benefit has been extended in favour of Smt. Sipra Kumari Parida, pursuant to order passed by this Court in W.P.(C ) No.10071 of 2018. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Petitioner was initially appointed as a Primary School Teacher vide order of appointment issued on Page 5 of 7 20.11.1998 under Annexure-1. Petitioner vide Office order dt.31.12.1999 under Annexure-2 was terminated from his services along with number of similarly situated Primary School Teachers. However, pursuant to the order passed by the Tribunal in O.A. No.2583(C) of 1997 and batch and the direction issued by the Government on 29.06.2011, petitioner was allowed to rejoin vide order dt.27.06.2012 under Annexure-3. 6.1. It is found that similarly situated terminated employee namely; Smt. Sipra Kumari Parida was extended with the benefit of retrospective regularization vide
Decision
order dt.22.10.2021 under Annexure-8 series, pursuant to the order passed by this Court in W.P.(C ) No.10071 of 2018. Extension of benefit in favour of Smt.Sipra Kumari Parida though has not been disputed by Opp. Party No.1 while rejecting Petitioner’s claim, but on the ground of negative equality, Petitioner’s claim has been rejected. 6.2. Since similarly situated employee who was also terminated as like the Petitioner has got the benefit of retrospective regularization, placing reliance on the decision in the case of Arvind Kumar Srivastava as cited supra, this Court is of the view that Petitioner is also entitled to get similar benefit as has been extended in favour of Smt. Sipra Kumari Parida. 6.3. Therefore, this Court is inclined to quash the impugned order dt.27.06.2022 so passed by Opp. Party No.1 under Annexure-7. While quashing the same, this Court directs Opp. Party No.4 to extend similar benefit as has been extended in favour of Smt. Sipra Kumari Parida vide order dt.22.10.2021 and extend the benefit of regularization in favour of the Petitioner from his initial Page 6 of 7 date of engagement, but on notional basis. Such a fresh order be issued within a period of three (3) months from the date of receipt of this order. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaitn of order Location: high court of orissa, cuttack Date: 24-Apr-2024 14:40:29 Page 7 of 7