The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 8067 of 2018 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Lalit Mohan Rath ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. S.K.Das, Advocate, For Opp. Party : Mr. S.N.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 7th AUGUST, 2024 The petitioner challenges order dated 21.11.2006 passed by the Commissioner-cum-Secretary to Government in the department of Higher Education whereby his claim for grant of pre-revised UGC scale of Page 1 of 16 pay for the period during which he was illegally kept out of employment was rejected. 2. The facts of the case, briefly stated, are that the
Legal Reasoning
petitioner was appointed as lecturer in History in the first post of 01.08.1978 in Berhampur City college. He was confirmed as full-time lecturer w.e.f. 17.07.1979. He became eligible for grant-in-aid under direct payment scheme from 01.06.1984. Since he had post graduate qualification securing less than 54 per cent marks, as per the Government guidelines, he was required to acquire the prescribed qualification, i.e. 54 per cent marks, by the end of 1985. The petitioner sought for leave on 17.07.1984 for the above purpose. Subsequently, he improved upon his previous performance by securing 58.7 per cent marks on 12.09.1985. In the meantime however, his services were terminated on 17.07.1984. The petitioner challenged the order of termination before this Court in OJC No. 1127 of 1986. By order dated 19.09.1991, a Division Bench of this Court quashed the Page 2 of 16 order of termination and inter alia issued the following directions “It is undisputed that there was only one post of Lecturer in History in the College and that post fill vacant on account of the termination of petitioner’s services. Pursuant to an advertisement for filling up that vacancy, opposite party No.4 has been appointed. There is no dispute that opposite party No.4 has the requisite qualification. But in view of our conclusion that the order of termination of the petitioner’s services is illegal and invalid and we have quashed the said order of termination pursuant to Annexure-7, in the eye of law there was no vacancy in the post of Lecturer in History in the college to which opposite party no.4 could have been legally appointed. In at view of the matter, the appointment of opposite party no.4 to the post of Lecturer in History in the College in question must be quashed and we accordingly quash the same. The petitioner must now be permitted to continue as a Lecturer in History in the college in question, but in the peculiar facts and circumstances of the case, the petitioner will not be entitled to any back wages for the period for which he has been kept out of service. The period, however, may be counted for other benefits as available to the petitioner under law.” (Emphasis added) Page 3 of 16 The order of this Court was ultimately complied with by allowing the petitioner to join on 26.07.1995 and he was granted direct payment of salary as per the grant-in-aid principle w.e.f. the same date. According to the petitioner, the first post of lecturer in History having been created w.e.f. 01.11.1985, he is entitled to grant-in-aid from the said date by fixing his pay notionally as directed by this Court. However, he was paid arrear salary from 16.12.1991 to 25.07.1995. He approached this Court in W.P.(C). No. 2823 of 2002 for fixation of pay scale in pre- revised UGC scale, Senior Grade Scale and Reader Scale etc. By order dated 06.07.2004, a Division Bench of this Court directed the opposite party authorities to consider his representation in accordance with law. The representation of the petitioner ultimately came to be rejected by order dated 21.11.2006 by holding that his service was covered under the direct payment scheme w.e.f. 16.12.1991, which is after the cut-off date of Page 4 of 16 01.04.1999. The petitioner kept on submitting representations for reconsideration of the decision repeatedly. The College also submitted factual report to the Director, Higher Education and sought for instructions. Ultimately, he was informed by office of the Commissioner-cum-Secretary on 25.06.2018 that the file had been referred to the law department for information and that a final decision would be taken soon. On such fact the petitioner has filed the above writ application. 3. The stand of the Opposite Party authorities as can be culled out from the counter affidavit filed by them is that the petitioner had joined as lecturer in History as a unqualified candidate having 48.23 per cent marks in M.A. examination. He was therefore, asked to improve his marks by the end of 1985 and to take leave for the purpose. Since the petitioner neither submitted leave application nor intimated the governing body of the steps taken by him in this regard, the governing body Page 5 of 16 terminated his service from 21.08.1984, which the petitioner challenged before this Court in OJC No. 1127 of 1986. As per order passed by this Court, the petitioner was allowed to join and the post was approved w.e.f. 26.07.1995. Subsequently, he was allowed GIA w.e.f. 16.12.1991 pending creation of super-numerary post. Since the petitioner entered into GIA fold w.e.f. 16.12.1991, which is after the cutoff date, i.e. 01.04.1989, he is not entitled to get the UGC scale. It is stated that the service period from 17.12.1984 to 15.12.1991 was not taken into consideration. It is also stated that by order dated 15.12.2018, the Government regularized the services of the petitioner by taking the period of disengagement and reappointment for grant of pensionary benefit only without notional fixation of pay for the said period. Further, last drawn salary on the date of disengagement, would be the salary on the date of his reengagement. Page 6 of 16
Legal Reasoning
4. Heard Mr. S.K.Das, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State. 5. Mr. Das would argue that the order passed by this Court in OJC No. 1127 of 1986 being clear and unambiguous, it is not open to the Opposite Party authorities to interpret the same in a contrary manner. Mr. Das further argues that this Court held that the petitioner would not be entitled to actual financial benefits for the period of his disengagement but he would certainly be entitled to all notional benefits including grant of UGC scale of pay because had he continued in service, he would have been entitled to the same much prior to the cutoff date i.e. 01.06.1981. 6. Mr. S.N.Pattnaik, learned Additional Government Advocate submits that the impugned order was passed way back in the year 2006 but the petitioner filed the writ Page 7 of 16 application in 2018. The delay has not been properly explained inasmuch as it is well settled that filing of repeated representations on the same issue cannot extend the period of limitation. On merits, Mr. Pattnaik would argue that grant of UGC scale is dependent on several factors and not automatic. Since the petitioner was not in actual employment such benefit cannot be granted notionally. 7. At the outset, this court would like to address the issue of delay raised by the Opposite Parties. The law in case of delay has been summarized in the case of Esha Bhattacharjee v Managing Committee of Raghunathpur Nafar Academy and others1, wherein it was held that: “… ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and 1 (2013) 12 SCC 649 Page 8 of 16 the said principle cannot be given a total go by in the name of liberal approach. … xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. …” Taking the abovementioned approach, it would be apposite to refer to the reasons cited for delay, in the additional affidavit by the petitioner. Perusal of the same reveals that post refusal of the petitioner’s 21.11.2006 representation, he again approached the OP-1 in 20.12.2006, urging reconsideration of the 21.11.2006 order, which was not acted upon despite recommendations from the Principal, Science College, Hinjlicut, (OP-3). Thereupon, the petitioner has been subject to inordinate delay for no fault of his own and in 2018 the matter was further referred to the law department for consideration. In such case, objectively the delay cannot be attributed to the petitioner. Therefore, this court finds no reason not to enter into the merits of the case. Page 9 of 16 8. Before examining the merits of the claim of the petitioner and the stand taken by the Opposite Parties, it is necessary to understand the directions of this Court issued while disposing of the said earlier writ application filed by the petitioner, that is, OJC No. 1127 of 1986. As has been quoted hereinbefore, this Court found the order of termination issued by the governing body of the college against the petitioner illegal and invalid for which the same was quashed. This Court, therefore, directed that the petitioner must be permitted to “continue as lecturer in the college”. This obviously means reinstatement of the petitioner in his former post. In other words, there was no scope for issuing a fresh order of appointment to the petitioner as the order of termination having been quashed, the petitioner must be deemed to have been in service all through and particularly, from the date of termination i.e. 21.08.1984. Such position of law has also been laid down by the Supreme Court in several cases including the case of Mohanlal v Management of M/S Page 10 of 16 Bharat Electronics Ltd.2, wherein the following was unequivocally stated If the appellant “17. The last submission was that looking to the record of this Court should not grant the reinstatement but award compensation. termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd. v. Chopra (P.P.) [(1969) 3 SCC 653 : (1970) 1 LLJ 63] and Hindustan Steels Ltd. v. A.K. Roy [(1969) 3 SCC 513 : AIR 1970 SC 1401 : (1970) 3 SCR 343] it was held that the court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the courts in the field of social justice and we do not propose to depart in this case.” (Emphasis added) This Court however, made it clear that the petitioner would not be entitled to any salary for the said period but said period would be counted for “other benefits” as 2 1981 AIR 1253 Page 11 of 16 available under law. The directions of this Court being clear and unambiguous, this Court fails to understand as to why the authorities concerned were contemplating creating of supernumerary post ostensibly to accommodate the petitioner. Be it said here that if at all creation of a supernumerary post was required, it ought to have been for the person who had been appointed in the termination vacancy and had to give way to the petitioner because of the order of this Court. Therefore, treating the petitioner as having been freshly appointed w.e.f. 26.07.1995 is clearly contrary to the direction of this Court. It is not disputed that the first post of lecturer in History was created vide G.O. No. 47203/ EYS dtd. 01.11.1985. It is also not disputed that by such time the petitioner had acquired the prescribed qualification by securing 58.7 per cent marks in the M.A. examination. The post was brought under grant-in-aid fold under direct payment scheme w.e.f. 01.06.1984. The cut-off date fixed for grant of UGC scale of pay is 01.04.1989. Page 12 of 16 Had the petitioner not been kept out of service, he would have been entitled to GIA under direct payment scheme w.e.f. 01.06.1984, which is prior to the cut-off date, i.e. 01.04.1989. Furthermore, he having acquired the prescribed qualification also prior to 01.04.1989, would have been entitled to the UGC scale of pay w.e.f. 01.01.1986. What the authorities have done is to reckon the services of the petitioner for the purpose of grant of GIA w.e.f. 26.07.1995, that is, the date of his joining after the order of termination was quashed. From what has been narrated hereinbefore, it is clear that the opposite parties have committed an error in this respect. In view of the clear direction of this Court, which incidentally has gone unchallenged, there is no way by which the petitioner’s service for the period from the date of his illegal termination till his joining could be ignored. This Court, therefore, holds that the petitioner is deemed to have been in service all through and therefore, he has Page 13 of 16 to be treated as entitled to all service benefits, albeit notionally. 9. Perusal of the impugned order reveals that the Commissioner-cum-Secretary has laid emphasis on the cutoff date i.e. 01.04.1989 which, for the reasons indicated above, cannot be sustained. This Court, therefore, holds that the petitioner would be entitled to notional fixation of pay in the direct payment scheme w.e.f. 01.06.1984 and the consequential fixation in the UGC scale of pay and all other benefits such as career advancement scheme etc notionally from 01.06.1984. 10. Thus, from a conspectus of the facts and law discussed above, this Court is of the considered view that the impugned order cannot be sustained in the eye of law. The consequential decision taken to regularize the services of the petitioner by holding that there would be no notional fixation of pay for the disengaged period also Page 14 of 16 cannot be sustained. This Court holds that the petitioner, having retired on attaining the age of superannuation, is entitled to have his pay revised notionally as regards grant of GIA w.e.f. 01.06.1984 followed by grant of UGC scale of pay and all other benefits under career advancement scale till the date of his superannuation. His last pay and consequentially pension and pensionary benefits are to be revised accordingly. 10. In the result, the writ application is allowed. The impugned order dated 21.11.2006 (Annexure-9) is hereby quashed. The Opposite Party authorities are directed to act in terms of the observations made in this judgment and to refix the petitioner’s last pay in accordance therewith as well as pension and pensionary benefits accordingly and to release the actual benefits from the date they fall due without any further delay. Necessary orders in this regard shall be passed by the Opposite Party authorities within a period of two months from the Page 15 of 16 date of production of certified copy of this order by the petitioner. Deepak ……..………………….. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 14-Aug-2024 18:26:51 Page 16 of 16