Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO.8221 OF 2018 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- State of Odisha & Others ..… Petitioners -Versus- Susama Pattnaik and Another ….. Opp. Parties For Petitioner : M/s. S. Jena, Standing Counsel for School & Mass Education Department. For Opp. Parties : M/s. R. K. Bisoi, B. R. Mohapatra, P.K. Behera & R.C. Nayak. P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE B.P.SATAPATHY // 2 // DATE OF HEARING & DATE OF JUDGMENT ON:: 24.01.2023 B.P.SATAPATHY, J. State of Odisha and its instrumentalities have filed the present Writ Petition challenging the order dated 20.06.2017 passed in O.A. No.1409 of 2015 and order dated 08.02.2018 passed in Review Petition No.44/2017 (Arising out of O.A No.1409 of 2015) by the Odisha Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar. While vide order dated 20.06.2017 the Tribunal allowed the prayer of the Opposite Party No.1 as made in O.A No.1409 of 2015, vide order dated 08.02.2018, the prayer for review of the order dated 20.06.2017 as prayed by the Petitioners was rejected by the Tribunal. 2. The factual matrix giving rise to filing of the present case is that the Opposite Party No.1 approached the Tribunal in O.A No.1409 of 2015 with a // 3 // prayer to direct the Petitioner No.3 to fix the pay of the Opposite Party in the promotional post w.e.f. 28.11.2010 and to pay the differential pay and allowance w.e.f. from the said date till her retirement and with a further prayer to revise her retirement benefit basing on the last pay arrived at in the promotional post within the time framed. 2.1. The Tribunal vide order dated 20.06.2017
Decision
disposed of the said matter with a direction to allow the scale of pay attached to Level-III teachers in favour of the Petitioners from 28.11.2010 to 31.03.2012 and accordingly to disburse the arrear pay. The Tribunal also directed that basing on such fixation of pay and the last pay drawn, the pension and pensionary benefits be also released and the arrear be paid to her. The Tribunal also directed to complete the entire exercise within a period of four months from the date of receipt of the order, failing which the arrear will carry interest at the rate of 7% till payment is made. // 4 // 2.2. Subsequent to the passing of the order on 20.06.2017 and in view of the fact that the matter was disposed of in absence of the counter, the Petitioners herein filed Review Petition No.44 of 2017 along with an application seeking condonation of delay in filling the application. In the review petition, that was filed by the Petitioners herein, it was contended that the order of promotion issued in favour of the opposite party vide order dated 25.11.2010 under Annexure-1 was withdrawn vide order dated 18.01.2011 and that order of reversion was issued basing on the order passed by this Court on 05.01.2011 in W.P.(C) No.14979 of 2010 and batch. The order of reversion passed on 18.01.2011 by the Government was duly communicated to the Director, Elementary Education vide order dated 03.02.2011 and by the District Inspector of School, Bhubaneswar vide order dated 07.02.2011. Subsequently, vide office order dated 15.02.2011 under Annexure-8, the order of reversion // 5 // was duly communicated to the Opposite Party and the Opposite Party also acknowledges the same. 2.3. In the order of promotion issued in favour of the Opposite Party on 25.11.2010 vide Annexure-1, it was clearly indicated in the said order that the promotion is subject to the final outcome of W.P.(C) No.14979 of 2010 and batch. Basing on the final order passed by this Court on 05.01.2011 in W.P.(C) No.14979 of 2010 and batch, the Petitioner No.1 vide its order dated 18.01.2011 directed the Petitioner No.2 to recall the orders of promotion issued in favour of all the teachers, who were promoted from the post of Level- IV to Level-III during pendency of the Writ Petitions. The order passed by the Petitioner No.1 on 18.01.2011, was duly communicated by the Petitioner No.2 on 03.02.2011. On receipt of the order, District Inspector of School vide office order dated 15.02.2011 under Annexure-8 reverted the Opposite Party to Level-IV and // 6 // order was also duly acknowledged by the present opposite party on 15.02.2011 itself. 2.4. Since the order of promotion issued in favour of the Opposite Party on 25.11.2010 under Annexure-1 was subject to the final outcome of W.P.(C) No.14979 of 2010 and batch and basing on the order passed by this Court on 05.01.2011, the Opposite Party was reverted from Level-III to Level-IV vide order dated 15.02.2011 under Annexure-8, the Tribunal should not have entertained the prayer of the Opposite Party in O.A No.1409 of 2015. However, the Tribunal when allowed the prayer vide its order dated 20.06.2017. Petitioners seeking review of the same filed Review Petition No.44/2017. But the Tribunal without proper appreciation of the grounds of reversion dismissed the review application vide order dated 08.02.2018. The Writ Petitioner is accordingly filed challenging the order dated 20.06.2017 as well as order dated 08.02.2018. // 7 // 3. Learned counsel appearing for the Petitioners contended that the order of promotion issued in favour of the Petitioners promoting him from Level-IV to Level-III vide order dated 25.11.2010 under Annexure-1 was subject to final outcome of W.P.(C) No.14979 of 2010 and batch. Pursuant to the order passed by this Court on 05.01.2011 and batch of writ petitions, the Opposite Party was revered to Level-IV vide order dated 15.02.2011 under Annexure-8. The order of reversion was also acknowledged by the Opposite Party on 15.02.2011 itself. Since the Petitioners much after her retirement approached the Tribunal, the prayer as made by the Opposite Party in O.A No.1409 of 2015 should not have been entertained and allowed by the Tribunal. 3.1. It is also contended that the order of reversion passed on 15.02.2011 was duly acknowledged by the Opposite Party No.1 vide Annexure-8-Series, and the order of reversion was never challenged by the // 8 // Opposite Party No.1 at any point of time till his retirement on 31.03.2012. Much after his retirement, the Opposite Party No.1 filed O.A No.1409 of 2015 with a prayer to direct the Petitioners to fix her pay in the promotional post w.e.f. 28.11.2010 till her retirement and to revise her pension and to pay the arrear entitlements also. 3.2. Learned counsel for the Petitioners vehemently contended that since the order of revision passed on 15.02.2011 was never challenged by the Opposite Party No.1, the prayer as made in O.A No.1409 of 2015 is not maintainable. Opposite Party No.1 while approaching the Tribunal in O.A No.1409 of 2015 never disclosed about the order of reversion passed on 15.02.2011 and the acknowledgment of the same by her. After being communicated with the order passed by the Tribunal on dated 20.06.2017, when the Petitioners filed Review Petition No.44/2017 with a prayer to review the order dated 20.06.2017, by // 9 // bringing to the notice of the Tribunal, the order of reversion passed against the Opposite Party No.1, basing on the order passed by this Court on 05.01.2011 in W.P.(C) No.14979 of 2010 and batch, the Tribunal without proper appreciation of the grounds of review dismissed the Review Petition vide order dated 08.02.2018. 3.3. It is contended that since the Opposite Party No.1 approached the Tribunal by suppressing the material information with regard to the order of reversion passed against her on 15.02.2011, the Opposite Party No.1 having not approached the Tribunal with clean hand, she is not entitled to get any relief. In support of the aforesaid submission, Mr. S. Jena, learned counsel appearing for the Petitioners relied on the decision of this Court in the case of Swapna Pradhan vs. State of Orissa and Others reported in 2020 (I) OLR- 93. This Court // 10 // relying on the decision of the Hon’ble Apex Court observed as follows in Para-15:- “15. Therefore, applying the above ratio to the present case, this Court is of the considered view that by giving distorted facts the petitioner has tried to mislead the Court and, as such, she has not come to this Court with clean hands. Therefore, she is not entitled to get any relief”. 3.4. Mr. Jena, learned counsel relied on another decision of this Court in the case of Sri Sukanta Sethi vs. State of Odisha & Others reported in 2021(II) OLR-963. In the said reported judgment, this Court in Para-22 and 23 has held as follows:- “22. As regards the consequence of suppression of material facts; e.g. the preparation of gradation list in the post of station officer and the corresponding entry in the respective service book, besides non-challenge to application of catch-up rule following the subsequent promotion of one Barjendu Bhusan Das from unreserved category to the post of Fire Officer, by which the petitioner was placed below him, such fact was not disputed in the rejoinder affidavit submitted in response to the counter affidavit filed by opposite party no.4. 23. In Kishore Samrite (supra), the writ petition, apart from being not fit to be entertained, was dismissed with punitive costs, bearing abuse of the process of court. Relevant paragraphs of the said judgment is extracted herein-in-below. // 11 // “Abuse of the process of Court : 29. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are: (i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief. (ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. (iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court. (iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. the in // 12 // (v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. (vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs. (vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants. of court and (viii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.[ Refer: Dalip Singh v. State of U.P. and Ors.:(2010) 2 SCC 114; Amar Singh v. Union of India and Ors.: (2011) 7 SCC 69 and State of Urraranchal v. Balwant Singh Chaufal and Ors.: (2010)3 SCC 402].” In view of such position, it cannot be construed that appointment of opposite party no.4 as Station Officer I n 1984 is void. Thereby, there is no basis to accept the contention of the petitioner that he is senior to opposite party no.4 on any count. Consequentially, the first question is answered against the petitioner with the finding that the opposite party no.4 is senior to the petitioner in the entry grade post of Station Officer of 1984 batch”. 3.5. Mr. Jena, learned counsel also contended that even though the Opposite Party No.1 retired on 31.03.2012, but she approached the Tribunal only in the year 2015. Therefore, on the ground of delay also // 13 // the matter should not have been entertained by the Tribunal with passing of the order in question. In support of the said submission, Mr. Jena relied on the decision of the Hon’ble Apex Court in the case of C. Jacob vs. Director of Geology and Mining & Another reported in (2008) 10 SCC 115. In the said reported judgment, Hon’ble Apex Court in Para-09 to 14 has held as follows:- reply involve any citizen deserves a “9. The courts/tribunals proceed on the assumption, that every to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex- employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer rejection of for quashing representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. is made the 10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, // 14 // without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the appropriate the department or department. incomplete Representations with particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. inform to is to that consider or deal with When a direction issued by a 11. court/tribunal the representation, usually the directee (person directed) examines the matter on merits, being under the impression to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of `acknowledgment of a jural relationship' to give rise to a fresh cause of action. to do may amount failure 12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice. that he should be 13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the in drain of public employee at fault and result // 15 // exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back-wages. issue only 14. We are constrained to refer to the several facets of the for to emphasize circumspection and care in issuing directions for `consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing `consideration' of such claims”. the need 3.6. Mr. Jena, also relied on another decision of the Hon’ble Apex Court in the case of Union of India and Others vs. M.K. Sarkar reported in (2010) 2 SCC 59. In the said reported judgment, Hon’ble Apex Court in Para-09, 10, 13 and 17 has held as follows:- “09. When a scheme extending the benefit of option for switchover, stipulates that the benefit will be available only to those who exercise the option within a specified time, the option should obviously be exercised within such time. The option scheme made it clear that no option could be exercised after the last date. In this case, the respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement. 10. The fact that the respondent was the head of his department and all communications relating to the offer of Eighth Option and the several communications extending the validity period for exercising the option for pension scheme, were sent to the heads of the departments for being circulated to all eligible employees/retired employees, is not in dispute. Therefore, the respondent who himself was the head of his department could not feign ignorance of the Eighth Option or the extensions of the validity period of the Eighth Option. // 16 // xxx xxx xxx 13. Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches. xxx xxx xxx 17. Even on merits, the application has to fail. In Krishena Kumar vs. Union of India - 1990 (4) SCC 207, a Constitution Bench of this Court considering the options given to the Railway employees to shift to pension scheme, held that prescription of cut off dates while giving each option was not arbitrary or lacking in nexus. This Court also held that provident fund retirees who failed to exercise option within the time were not entitled to be included in the pension scheme on any ground of parity. Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an opportunity to exercise option to shift to the pension scheme, after the expiry of the validity period for option scheme, that too in the year 1998 after 22 years”. 4. Mr. R.K. Bisoi, learned counsel appearing for the Opposite Party No.1 on the other hand contended that Opposite Party No.1 was promoted to // 17 // Level-III vide order dated 25.01.2010 and she was allowed to retire as such on 31.03.2012. Therefore, the authorities concerned are liable to extend the benefit of the pay scale for the period, the Opposite Party No.1 continued in promotional post of Level-III w.e.f. 28.11.2010. Since the said benefit was not extended, Opposite Party No.1 approached the Tribunal in O.A No.1409 of 2015. In spite of notice when no counter affidavit was filed disputing the claim of the Opposite Party No.1, the Tribunal disposed of the matter vide order dated 20.06.2017 and by directing the Petitioners to pay the scale of pay attached to Level-III, for the period from 28.11.2010 to 31.03.2012 and with a further prayer to revise the pension and to pay the arrear entitlements. 4.1. Mr. Bisoi, learned counsel further contended that subsequently though the Review Petition was filed, but it was not filed within the stipulated time and the Tribunal on the face of such delay in filing the review petition considered the // 18 // grievance and rejected the same vide order dated 08.02.2018. Accordingly, it is contended that the Tribunal rightly passed the initial order on 20.06.2017 and rightly also refused to review the order, while dismissing the Review Petition vide order dated 08.02.2018. Hence, it is contended that no interference is called for by this Court to either the order dated 20.06.2017 or order dated 08.02.2018 in exercise of its power under Article 227 of the Constitution of India. 5. We have heard Mr. S. Jena, learned counsel for the Petitioners and Mr.R.K. Bisoi, learned counsel appearing for the Opposite Party No.1. On the consent of the learned counsel appearing for both the Parties, the matter was heard finally and disposed of at the stage of admission. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Opposite Party No.1 was promoted from Level-IV to Level-III vide order dated 25.11.2010 under Annexure-1. In the said order, it // 19 // was clearly indicated that the order of promotion to Level-III shall be subject to final outcome of W.P.(C) No.14979 of 2010 and batch. It is found from the record that pursuant to the order passed by this Court on 05.01.2011 in W.P.(C) No.14979 of 2010 and batch, the Petitioner No.1 vide order dated 18.01.2011 directed the Petitioner No.2 to recall all the promotions issued to the concerned teachers from Level-IV to Level- III during pendency of the matter before this Court in the aforesaid batch of Writ Petitions. On receipt of the order passed by the Government on 18.01.2011, Petitioner No.2 passed the order on 03.02.2011 directing the concerned D.I of Schools to take immediate steps to recall the promotion given from Level-IV to Level-III in their respective Education Districts. 6.1. Basing on the order passed by the Petitioner No.2 on 18.01.2011 and by Petitioner No.2 on 03.02.2011, Opposite Party No.1 was reverted from Level-III to Level-IV vide Office Order No.767 dated // 20 // 15.02.2011 under Annexure-8. The order of reversion was also acknowledged by the Opposite Party No.1 and her name is reflected at Sl. No.7. Even though the Opposite Party No.1 acknowledges the order of reversion passed on 15.02.2011, but while approaching the Tribunal in O.A No.1409 of 2015, claiming the benefit of the scale of pay for the period, she continued in Level-III, the order of reversion was never brought to the notice of the Tribunal. 6.2. The Tribunal in absence of any counter filed by the Petitioners when allowed the prayer vide order dated 20.06.2017, the Petitioners filed Review No.44 of 2017 seeking review of the order dated 20.06.2017. It is borne from the record that while filing the Review Petition, the order passed by the Government-Petitioner No.1 on 18.01.2011 and by Petitioner No.2 on 03.02.2011 though was brought to the notice of the Tribunal, but the Tribunal on wrong appreciation and without taking into account the order of reversion passed against the Opposite Party No.1, // 21 // dismissed the review petition vide order dated 08.02.2018. 6.3. In course of hearing, when this Court put a specific question to Mr. R. K. Bisoi, learned counsel for the Opposite Party No.1 as to whether the Opposite Party No.1 at any point of time assailed the order of reversion passed on 15.02.2011 under Annexure-8, it is also fairly contended that the order of reversion was never challenged by the Opposite Party No.1 till his retirement on 31.03.2012. In view of the fact that the order of reversion passed on 15.02.2011 was never assailed by the Opposite Party No.1 till her retirement on 31.03.2012 or subsequent thereto, the prayer as made by the Opposite Party No.1 in O.A No.1409 of 2015, as per the considered view of this Court was not entertainable. 6.4. Not only that Opposite Party No.1 while approaching the Tribunal in O.A No.1409 of 2015 has not disclosed about the order of reversion passed against her on 15.02.2011. Therefore, it is very much // 22 // apparent that the Opposite Party No.1 has not approached the Tribunal with clean hands and she has intentionally suppressed the material fact with regard to her reversion which was passed on 15.02.2011. Opposite Party No.1 also approached the Tribunal more than 3(Three) years of her retirement, which as per the considered view of this Court is a delayed approach and the Tribunal should not have entertained such a stale claim. 7. Therefore, placing reliance on the decisions relied on by Mr. Jena as cited (supra) and the fact that the order of reversion passed on 15.02.2011 was never assailed by the Opposite Party No.1 at any point of time, the order passed by the Tribunal on 20.06.2017 as well as the order dismissing the Review Petition on 08.02.2018 are not sustainable in the eye of law. Therefore, this Court is inclined to quash the order dated 20.06.2017 passed in O.A No.1409 of 2015 as well as the order dated 08.02.2011 passed in Review Petition No.44 of 2017. While quashing both the // 23 // orders, this Court dismisses the matter filed by the Opposite Party No.1 in O.A No.1409 of 2015. 8. The Writ Petition accordingly succeeds and allowed. However, there shall be no order as to costs. JUDGE DR. B.R.SARANGI, J. I agree. …………….………….. B.P.SATAPATHY, …………….………….. DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 24th of January, 2023, Subrat