The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20072 of 2023 Kabitarani Acharya …. Petitioner Mr. J.R. Khuntia, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. B.P. Tripathy, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 29.01.2024 Order No 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. J.R. Khuntia, learned counsel for the Petitioner and Mr. B.P. Tripathy, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the above circumstances, it is humbly
Decision
prayed that the writ petition may be allowed; (A) A writ of mandamus or an appropriate writ may be issued by quashing/modifying the impugned order dated 05.07.2022 passed by the State Government in ST & SC Development Department, Bhubaneswar under Annexure:5 to the extent that the petitioners are entitled to get the actual financial benefit with effect from 26.10.2013 instead of 20.01.2022 keeping in view the order passed by the Odisha Administrative Tribunal I O.A. No. 1914 of 1998 and O.A. // 2 // in S.T. & No. 2536 of 2016 as well as the order dated 03.07.2013 and 16.11.2019 passed by the State Government S.C. Development Department, Bhubaneswr and also in view of the judgment of the Hon’ble Apex Court rendered in the case State of Karnataka and others Vs. C. Lalitha reported in (2006) 2 SCC 747 and in the case of State of Uttar Pradesh Vs. Arvind Kumar Srivastava reported in (2015) 1 SCC 347, within a time to be stipulated by this Hon’ble Court; any other or direction/directions may be issued so as to give complete relief to the petitioners; order/orders (B) And And for the said act of kindness, the petitioner as in duty bound shall ever pray.” 4. It is the case of the Petitioner that basing on the order passed by the Tribunal in O.A. No. 2536 of 2016, Petitioners therein were extended with the actual financial benefit w.e.f.26.10.2013 and the benefit on notional basis w.e.f.26.03.1994 while fixing their pay w.e.f.26.03.1994 vide order dtd.16.11.2019 under Annexure-4. But while implementing similar order passed by this Court in W.P.(C) No. 25503 of 2021 and 25693 of 2021, though pay of the Petitioners were fixed in the same scale of pay w.e.f.26.03.1994 on notional basis, but actual financial benefit was allowed w.e.f. the date of filing of the case before this Court i.e.20.01.2022. 4.1. It is contended that while complying the order passed by the Tribunal similarly situated persons were extended with the benefit of pay fixation on notional basis w.e.f.26.03.1994 and actual financial benefit w.e.f.26.10.2013, but in case of the Petitioner, actual financial benefit was illegally allowed w.e.f. the date of filing of the case instead of 26.10.2013. It is accordingly contended that the aforesaid action of the Opp. Party No. 1 in extending the Page 2 of 6 // 3 // actual financial benefit from the date other than the date indicated in Annexure-4 is not only illegal but also arbitrary and discriminatory. In support of his submission, learned counsel appearing for the Petitioner relied on the decisions of the Hon’ble Apex Court in the case of State of Karnataka and others Vs. C. Lalitha reported in (2006) 2 SCC 747 as well as State of Uttar Pradesh Vs. Arvind Kumar Srivastava reported in (2015) 1 SCC 347. 4.2. Hon’ble Apex Court in the case of C. Lalitha in Para 29 of the Judgment has held as follows:- “29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.” 4.3. Hon’ble Apex Court in the case of Arvind Kumar Srivastava in Para 22 & 23 of the Judgment 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 Page 3 of 6 // 4 // 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 4 of 6 // 5 // 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.” 4.4. It is accordingly contended that since Petitioner though similarly situated have been discriminated vis-à-vis similarly situated teachers vide order issued under Annexure-4, the Page 5 of 6 // 6 // impugned order passed under Annexure-5 is not sustainable in the eye of law and requires interference of this Court. 5. Learned Addl. Standing Counsel on the other hand contended that if Petitioner is eligible and entitled to get the benefit as has been extended in favour of the Person vide order at Annexure-4, let them approach the authority concerned to get the benefit. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court while quashing the order dtd.05.07.2022 under Annexure-5, directs Opp. Party No. 1 to take a fresh decision on the claim of the Petitioner to get similar benefit as has been extended in favour of the person vide order dtd.16.11.2019 under Annexure-4. Such a fresh decision as directed be taken by Opp. Party No. 1 within a period of three (3) months from the date of receipt of this order. 6.1. It is further observed that while taking such a decision, not only the order at Annexure-4 be followed but also the order passed by the Hon’ble Apex Court in the above noted cases. Learned counsel for the Petitioner is directed to file copy of this order along with the order passed under Annexure-4 and the decision in the case of C. Lalitha as well as Aravinda Srivastava before Opp. Party No. 1 for compliance. 7. The writ petition is disposed of. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jan-2024 18:20:57 Sneha (Biraja Prasanna Satapathy) Judge Page 6 of 6