The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7490 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Sakuntala Panigrahi …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. A.K. Mohanty(A), Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 20th August 2025 B.P. Routray, J.
Legal Reasoning
1. Heard Mr. A.K. Mohanty(A), learned Advocate for the Petitioner and Mr. G. Tripathy, learned Additional Government Advocate for the State-Opposite Parties. 2. The Petitioner, who served as Store Keeper in Bhadrak Women’s College, Bhadrak, has prayed for release of her differential arrear salary in the scale of pay with P.B.-1, Grade pay of Rs.2400/- W.P.(C) No.7490 of 2022 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 with effect from the date of approval and re-fixation of her salary under different ORSP Rules. 3. It is submitted that pending the litigation, the Petitioner retired from service on 30.04.2022. In her earlier journey, she filed W.P.(C) No.14576 of 2016 wherein this Court vide order dated 26th August 2016 had directed the authority for consideration of her representation afresh. Consequent thereof, the authority (Opposite Party No.2) rejected the prayer of the Petitioner refusing her to grant the higher scale of pay on the ground that she did not acquire B.Sc. qualification which makes her ineligible for higher scale of pay. The said order of Opposite Party No.2 dated 12.12.2017 under Annexure-5 is impugned in the present writ petition by the Petitioner. 4. It is submitted on behalf of the Petitioner that earlier challenging the same impugned order, she preferred W.P.(C) No.6240 of 2018 which was allowed to be withdrawn with liberty to file a fresh writ petition vide order dated 23.2.2022 of this Court. Accordingly, the present writ petition has been filed. 5. The bone of contention of the Petitioner to get higher scale of pay is on the ground of equality with similarly situated Store Keepers W.P.(C) No.7490 of 2022 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 of Subarnarekha College, Baliapal, Balasore. It needs to be mentioned here that three Store Keepers, namely, Goura Mohan Biswal, Kamal Lochan Sahoo and Harendra Nath Nayak appointed in S.R. College, Baliapal have filed W.P.(C) No.8826 of 2012 and this Court vide order dated 15.5.2012 passed therein directed the authority, i.e. present Opposite Party No.2 to consider their cases on the basis of recommendation of the Governing Body of the College and to take a decision accordingly. Pursuant to the same, admittedly the benefit of higher scale of pay was allowed to those Petitioners, similarly situated with present Petitioner, vide order dated 9.2.2015 (Annexure-9) of Opposite Party No.2 and order dated 24.12.2014 (Annexure-8) of Opposite Party No.1. In the present impugned order while refusing to grant such higher scale of pay to the Petitioner, it is stated by Opposite Party No.2 that the case of those Petitioners, who are Store Keepers of S.R. College, Baliapal, have been approved as special case and cannot be cited as precedent in future. 6. Mr. G. Tripathy, learned Additional Government Advocate for the State-Opposite Parties submits that, approval of the case of those Store Keepers of S.R. College, Baliapal cannot be treated as a precedent in the present case and present Petitioner cannot claim any W.P.(C) No.7490 of 2022 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 equality for that which is impermissible on the principles of negative equality. He further submits that unequals cannot be treated as equals and therefore, any such benefit granted in favour of the Store Keepers of said S.R. College, Baliapal cannot be extended in favour of present Petitioner on the ground of equality alone. 7. From the narration of facts, it remains admitted that three Store Keepers of S.R. College, Baliapal standing on same footing, i.e. without having B.Sc. qualification have been granted with the benefit of higher scale of pay and this has been stated as a special treatment to them by the Opposite Parties without being considered as a precedent with other cases. 8. Hon’ble Supreme Court in the case of State of Odisha and another vs. Anup Kumar Senapati and another, (2019) 19 SCC 626, have explained the principles of negative equality and stated its inapplicability. It is stated that there is no concept of negative equality under the Constitution and in absence of any right, no person can claim right to be treated equally. W.P.(C) No.7490 of 2022 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 9. In Arup Das vs. State of Assam, (2012) 5 SCC 559, it is observed as follows:- “19. In a recent decision rendered by this Court in State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330, this Court once again had to consider the question of filling up vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on the observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.” 10. Further in Fuljit Kaur vs. State of Punjab, (2010) 11 SCC 455, it is observed as follows:- “11. The respondent cannot claim parity with D.S. Longia v. State of Punjab, 1992 SCC OnLine P&H 1027, in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be W.P.(C) No.7490 of 2022 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd. v. Union of India, 1984 Supp SCC 457, Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Union of India, (2009) 15 SCC 705.” 11. In the given facts of the present case, the contention of Mr. Tripathy, learned A.G.A. that the Petitioner’s claim is based on negative equality is not found correct. In the counter affidavit filed by the State, it is never admitted by the Opposite Parties that such grant of benefit in favour of others was ever a mistake or by inadvertence. 12. In Union of India and others vs. Munshi Ram, 2022 SCC OnLine SC 1493, the Hon’ble Supreme Court of India referring to the case of Anup Kumar Senapati and another (supra) have said as follows:- W.P.(C) No.7490 of 2022 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 “50. It is further submitted by Shri Sanjay Parikh, learned Senior Advocate that the concept of negative equality raised by learned ASG shall not be applicable in the present case. It is submitted that the judgment of this Court in the case of Anup Kumar Senapati (supra) relied upon by the appellants is not applicable to the facts of the present case. It is submitted that facts of the present case clearly establish the right for being absorbed on the vacant posts and that the High Courts have granted relief on the basis of the provisions of the Rules, 1993, which has been confirmed by this Court. It is submitted that there are admissions/concessions of the Railway Board and acceptance of the series of judgments that the Commission Vendors/Bearers are entitled to claim 50% of their service for the purpose of pension. That this is not a case of either the decisions being wrong or there being any illegality or fraud or that it is not even a case where the relief/benefit has been granted inadvertently or by mistake. It is a case where different zones and divisions under the Railway Board are granting pension whereas it has been denied to other similarly situated persons in violation of Articles 14, 16 and 21 of the Constitution. It is submitted that therefore, the present case is clearly covered by the decision of this Court in the case of G.C. Ghosh v. Union of India, 1991 Supp (2) SCC 497.” 13. As stated earlier, in the instant case, the Opposite Parties never claim that grant of benefit in favour of other Store Keepers was a mistake on the part of the authority. It is not that those Store Keepers are not standing with same footing with present Petitioner and the W.P.(C) No.7490 of 2022 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 order of the Government under Annexure-8 reveals that, the benefit has been granted to those Store Keepers of S.R. College, Baliapal by condoning their requisite qualifications. So if the requisite qualifications have been condoned in respect of those Store Keepers to extend the benefit of higher scale of pay to them, the authority is debarred from not condoning the same in respect of the present Petitioner without any valid reason and without any valid differentia. Thus, the argument advanced by Mr. Tripathy, learned A.G.A. that the Petitioner is not entitled for similar benefits cannot be approved. 14. In the given facts of the present case and as per the discussions made above, the principle of negative equality is not found applicable here and as a result of the same, the authorities are liable to grant such benefits in favour of the Petitioner.
Decision
15. Resultantly, the writ petition is allowed and the impugned order dated 12.12.2017 under Anneuxre-5 is quashed. The Opposite Parties are directed to grant such scale of pay under different ORSP Rules as extended in faovur of those Store Keepers of S.R. College, Baliapal. The differential arrear salary will be granted in faovur of the Petitioner W.P.(C) No.7490 of 2022 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:53:51 within a period of four months from the date of receipt of a certified copy of this order. 16. With the aforesaid observation and directions, the writ petition is disposed of. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.7490 of 2022 Page 9 of 9