The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20824 of 2015 Jogendra Nath Behera & Ors. …. Petitioners Mr. A.K. Mohanty, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. B.P. Tripathy, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.03.2024 Order No 13. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. A.K. Mohanty, learned counsel for the Petitioners and Mr. B.P. Tripathy, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Pursuant to the order passed by this Court on 10.08.2023, instruction provided by the learned Addl. Govt. Advocate in Court be kept in record. 4. It is the main contention of the learned counsel appearing for the Petitioners that even though similar benefit with release of differential pay for the period from 01.01.1996 to 30.09.2002 was released in favour of similarly situated employees, but claim of the Petitioners was rejected vide the impugned order on 05.04.2014 under Annexure-5, pursuant to the order passed by this Court on 19.07.2011 in W.P.(C) No. 18507 of 2011. 4.1. Learned counsel for the Petitioner contended that since similar benefit with release of differential pay for the period from // 2 // 01.01.1996 to 30.09.2002 has been released in favour of similarly situated employees, the ground on which the claim of the Petitioner
Decision
has been rejected vide the impugned order is not sustainable in the eye of law. Considering the stand taken in the writ petition and the stand taken by Opp. Party Nos. 1 & 2 in the counter affidavit, this Court passed the following order on 10.08.2023:- “2. In course of hearing, Mr. A.K. Mohanty, learned counsel for Petitioners, draws attention of this Court to Paragraph-6 of the rejoinder filed by him, wherein reference has been made to the Lecturers who are said to be similarly placed as the petitioners and who have been granted differential arrear salary. Learned State counsel shall take instructions in this regard and inform the Court accordingly. 3. List this matter on 31st August, 2023.” 5. Pursuant to the order so passed, learned Addl. Govt. Advocate produced the instruction so provided by the Department vide its letter dtd.07.02.2024. From the said instruction though it is not disputed that similar benefit has not been extended, but plea has been taken that in view of the settled position of law so made in Para 10 of Resolution dtd.20.02.2003, Petitioner is not entitled to get the benefit and it has been rightly rejected. 6. To the stand taken in the instruction vis-(cid:224)-vis the impugned order, learned counsel for the Petitioner contended that in view of the decision of the Hon’ble Apex Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastav and Ors. (2015) 1 SCC 347. Petitioner being similarly situated, he cannot be discriminated with regard to release of differential salary for the period in question. Hon’ble Apex Court in Para 22 & 23 of the said decision has held as follows:- Page 2 of 5 // 3 // “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 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 Page 3 of 5 // 4 // 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 cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after 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.” 7. Having heard learned counsel appearing for the Parties and considering the submission made and the fact that similarly situated employees have got the benefit of differential salary for the period from 01.01.1996 to 30.09.2002, which is not disputed by the Opp. Parties in the instruction so provided to this Court today, placing reliance on the decision of the Hon’ble Apex Court in the case of Arvind Kumar Srivastav as cited (supra), this Court is of the view that Petitioner cannot be discriminated vis-(cid:224)-vis similarly situated Page 4 of 5 // 5 // employees. This Court accordingly is inclined to quash office order dtd.05.04.2014 so passed by Opp. Party No. 2 under Annexure-5. While quashing the same, this Court directs Opp. Party No. 2 to release the differential pay of the Petitioner for the period from 01.01.1996 to 30.09.2002 within a period of two (2) months from the date of receipt of this order. 8. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Mar-2024 10:15:09 Page 5 of 5