The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19506 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Krushna Chandra Panda …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.L.K. Mohanty, R. Das & S.Das. For Opp. Parties : M/s. Mr. Sangram Jena, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:24.11.2023 and Date of Judgment:24.01.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The present Writ Petition has been filed inter alia challenging the order dtd.02.05.2022 so passed by Opposite Party No.1 under Annexure-17. Vide the said order, the claim of the Petitioner to get the benefit of retrospective promotion to the cadre of Junior SES w.e.f. 24.10.1989 was rejected. 2. It is the case of the Petitioner that Petitioner was appointed as an Asst. Teacher against Trained Matric Post, which is coming under LSES cadre on 24.10.1986 by facing // 2 // regular process of selection conducted by the District Selection Committee headed by the then Inspector of School, Koraput and by following the provisions of Orissa Subordinate Education Service (General Branch) Rule, 1972 (in short ‘Rules’). Petitioner while continuing as against the Trained Matric Post, he acquired the B.Ed. qualification in the year 1989. 2.1. It is contended that as provided under Rule-10(a)(b) of the Rules, Teachers belonging to LSES cadre became eligible for promotion to the post of Junior SES cadre on completion of 3 years service with B.Ed. qualification. As further provided under Rule-15, read with Rule-10(b) and 11(a) of the Rules, the Selection Committee is required to meet every year to consider promotion to the higher post i.e. to the cadre of Junior SES. 2.2. It is contended that even though Petitioner acquired the B.Ed. qualification in the year 1989 and in terms of Rules-10 of the 1972 Rules, he became eligible to get the benefit of promotion to the rank of Junior SES, on completion of 3 years of service, but the same was never extended in his favour till the Petitioner was so promoted to the rank of Junior SES only vide order dtd.24.09.2005 under Annxure-2. Page 2 of 40 // 3 // 2.3. It is contended that claiming similar benefit of retrospective promotion in terms of the provisions contained under the 1972 Rules when O.A No.1673(C)/ 1993 was filed before the Tribunal by one Rabindra Kumar Panda and another, the Tribunal vide order dtd.28.09.2007 directed to convene a special Selection Committee for considering the claim of the Petitioners therein for promotion to the cadre of Junior SES against the year wise vacancies of the year 1984 and to promote the Petitioner if found eligible.
Legal Reasoning
2.4. It is contended that the order passed by the Tribunal on 28.09.2007 was duly complied with by the Opposite Parties by extending the benefit of retrospective promotion against the year wise vacancy vide order dtd.28.09.2011 under Annexure-3. 2.5. It is also contended that similar order passed by the Tribunal on 28.07.1999 in O.A No.433(C)/1994 was assailed by the State before this Court in W.P.(C) No.5790 of 2002. This Court vide order dtd.10.08.2017 while
Decision
disposing the writ petition was not inclined to interfere with the direction so issued by the Tribunal. While confirming the order passed by the Tribunal, this Court held as follows in Para-6 of the order:- Page 3 of 40 // 4 // the State-Petitioner “6. On a close scrutiny of case record, it reveals that vacancy in the post of Junior SES was available in the year 1985. The opposite parties claimed promotion to the said post on the plea that they were otherwise eligible for promotion. No counter affidavit was filed by (the contesting respondents) before learned Tribunal disputing such claim. Resorting to the doctrine of non traverse, we are constrained to hold that the vacancy meant for promotion was available in the cadre of Junior SES in the year 1985. On perusal of impugned order under Annexure-1, it appears that Annexure-4 to the Original Application was indicative of the fact that the opposite parties had already acquired B.Ed. qualification in the year 1985, when vacancy in the cadre of Junior SES arose. T here is no pleading by the State- Petitioners in the writ petition to the effect that the opposite parties were not eligible be considered for promotion to the cadre of Junior SES in the year 1985. Thus, the submission of Mr. Samal with regard to eligibility of the Opposite Parties for promotion cannot be accepted. In that view of the matter, we are of that the view that the opposite parties were eligible to be considered for promotion in the year 1985. Rule-15 read with Rule-10(b) and Rule 11(a) of the Rules 1972 make it clear that the Selection Committee should meet each year to consider filing up of vacancy in the Junior SES cadre for that year. Admittedly, the case of the opposite parties were considered only in the year 1993 for no fault of their. It appears from the concluding paragraph of the impugned order under Annexure-1 that learned Tribunal was conscious of the fact that the opposite parties have not discharged the duties and responsibilities in the cadre of Junior SES till their promotion to the said cadre in the year 1993. As such, taking into consideration the entirety of facts and circumstances of the case, learned Tribunal has directed that the pay of the opposite parties in the promotional cadre of Junior SES should be notionally fixed, taking into account the date of occurrence of vacancy to which they were promoted subsequently. Learned Tribunal has also made clear that the opposite parties would not be entitled to any back wages for the intervening period for the simple reason that they had not discharged the duties and responsibilities attached to the higher post. Thus, we find no infirmity in the impugned order under Annexure-1”. 2.6. It is also contended that similar prayer made by one Naibn Kumar Khamari in O.A. No.1804/1998 when was allowed by the Tribunal vide order dtd.07.09.2011 under Annexure-4, Opposite Party No.1 vide order dtd.20.02.2013 under Annexure-5 directed Opposite Party No.2 to comply the said order. Pursuant to such direction issued by Page 4 of 40 // 5 // Opposite Party No.1 under Annexure-5, Sri Nabin Kumar Khamari was also extended with the benefit of retrospective promotion vide order dtd.26.02.2013 under Annexure-6. 2.7. Taking into account the benefit extended in favour of similarly situated employees when Odisha Secondary Teachers Association made a representatioin before Opposite Party No.1 to grant retrospective promotion to eligible teachers to the rank of Junior SES against year wise vacancies, Opposite Party No.1 vide letter dtd.12.06.2013 under Annexure-7 requested Opposite Party No.2 to finalize the gradation list of Junior SES Teacher under intimation to the Department. On receipt of such request vide letter under Annexure-7, Opposite Party No.2 vide his letter dtd.07.02.2014 under Annexure-8 requested the Government to consider the prayer of the Association to extend the benefit of promotion to the rank of Junior SES retrospectively as against the year wise vacancies to eligible LSES cadre Teacher. 2.8. It is contended that on the face of such benefit extended in favour of similarly situated employees and the request made by Opposite Party No.2 in his letter dtd.07.02.2014 under Annexure-8, when the present Petitioner was not extended with the benefit of retrospective promotion to the rank of Junior SES from the date of his Page 5 of 40 // 6 // eligibility in terms of the provisions contained under Rule- 10(a) of 1972 Rules, Petitioner approached the Tribunal claiming such benefit in O.A No.87(C) of 2014. The Tribunal vide order dtd.19.09.2015 under Annexure-9 while disposing the matter directed Opposite Party No.1 to pass appropriate order in the matter of promotion of the Petitioner retrospectively on the basis of the gradation list submitted by the Director within a period of three months from the date of receipt of this order. The Tribunal further held that Petitioner and other similarly situated Teachers shall be promoted to the post of Junior SES notionally against the year wise vacancies without any financial benefit as has been done in case of the applicants in O.A No.1673 (C) of 1993 and O.A. No.1804/1998. 2.9. Challenging the order passed by the Tribunal on 14.09.2015 under Annexure-9, State approached this Court in filing W.P.(C) No.22983 of 2016. This Court while not interfering with the order passed by the Tribunal, disposed of the same vide order dtd.29.03.2017 by permitting the Opposite Party No.1 to pass a reasoned order as directed as expeditiously as possible. Relevant extract of the order at Para-7 is reproduced hereunder:- “7. The Tribunal has passed the impugned order taking the earlier order dated 28.11.2007 passed in O.A. No.1673 (C) of 1993 filed by into consideration Page 6 of 40 // 7 // one Rabindra Kumar Panda and another. Since the said order was confirmed, the same benefit is extended to the present opposite party no1., which is not disputed at the Bar. As there is no error apparent on the face of the record, this Court is not inclined to interfere with the same in exercise of the jurisdiction under Article 227 of the Constitution of India. However, pursuant to the direction issued by the Tribunal in the impugned order, Petitioner no.1 shall take a decision and pass a reasoned order as expeditiously as possible”. 2.10. It is contended that on the face of the direction issued by the Tribunal under Annexure-9 so confirmed by this Court in its order dtd.29.03.2017 under Annexure-10, Opposite Party No.1 without proper appreciation of the order passed by the Tribunal and the benefit extended in favour of similarly situated applicants in O.A No.1673(C) of 1993 and O.A. No.1804 of 1998, rejected the claim of the Petitioner vide order dtd.18.09.2017 under Annexure-11. However, it is contended that the Tribunal who was in seisin of the matter in C.P. No.432(C) of 2015 did not accept the compliance made by Opposite Party No.1 in rejecting the claim of the Petitioner vide order dtd.18.09.2017, and vide order dtd.17.11.2017 under Annexure-12 directed Opposite Party Nos.1 and 2 to appear in person. However, in the meantime this Court while dealing with the matter in CONTC No.1097/2018 passed the following order on 24.02.2021 under Annexure-13:- “Heard learned counsel for the parties. Page 7 of 40 // 8 // Since all the matters arises out of a common questions of facts and law, they are heard analogously and taken up together for disposal by this common order. The petitioners in the aforesaid Writ Petitions have challenged the judgment rendered by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.87(C) of 2014 and O.A No.3866 (C) of 2012 and the order passed by this Court in W.P.(C) No.22983 of 2016. The brief facts of the case is that W.P.(C) No.9682 of 2017 was disposed of on vide order dated 19.6.2017 with a direction to petitioner No.1-Secretary, to Govt. in School and Mass Education Department, Bhubaneswar to take a decision and pass a reasoned order pursuant to the order dated 28.11.2007 passed by the learned Administrative Tribunal in OA No. 1673 (C) filed by one Rabindra Kumar Panda and another. After the said direction was issued to petitioner no. 1, he has passed an order on 18.9.2017 and in the meantime, since the said order passed by this Court, was not complied with, contempt petition has been filed. At the same time, another group of applications have been filed wherein the parties have challenged the anomaly due to which different orders passed by the Tribunal which are confirmed by this Court and the same are also implemented by the Government in the meantime. All those facts are to be considered by the opposite parties while considering the grievance of the present petitioners. Considering the submissions of the learned counsel for the parties, this Court disposes of all the CONTC/ Writ Petitions/RVWPET with an observation that Since different Original Applications, different Writ Petitions have been filed and different orders have been passed in different dates and it was not brought to the knowledge of the Court regarding the status of the parties and their serial numbers in the Gradation list and moreover, the fact that the Government has already implemented the order by giving antedate promotion to some of the applicants, if the present petitioners case are falling within the purview of those Court's/Tribunal's orders, in such event, the opposite party no.1 shall afford an opportunity of hearing to all the applicants in the respective Contcs/ Writ Petitions/RVWPET and pass a reasoned order to that effect. However, the entire exercise shall be completed within a period of three months from the date of receipt of copy of this order, without being influenced by the earlier order passed by this Court/ Tribunal. With the above observation/direction, the aforesaid Contc/ Writ Petitions/RVWPET are accordingly disposed of. 2.11. It is contended that present Petitioner on wrong advice while challenging the order dtd.24.02.2021, approached the Hon’ble Apex Court in Special Leave to Page 8 of 40 // 9 // Appeal No.7048-7413/2021. Hon’ble Apex Court vide order dtd.27.01.2022 while confirming the order passed by this Court on 24.02.2021, further observed that the State Government should consider the matter and pass appropriate reasoned order after considering the submissions of all concerned. Hon’ble Apex Court also observed that the merits and demerits of the rival contentions shall be gone into by the State purely on their own merit. 2.12. Learned counsel for the Petitioner contended that after disposal of the matter by this Court vide order dtd.24.02.2021 under Annexure-13 and pursuant to an order passed by this Court on 17.08.2021 in CONTC No.3985 of 2021, filed by one Smt. Sobharani Mohanty, the rejection of similar claim made by the Government vide order dtd.21.04.2018 was withdrawn vide order dtd.23.08.2021 under Annexure-16. After withdrawing the order of rejection, Smt. Sobharani Mohanty was extended with the benefit of retrospective promotion to the rank of Junior SES vide order dtd.31.08.2021 under Annexure-17- Series. Not only that similar order passed by the Tribunal to extend retrospective promotion in O.A No.3885(C) of 2012 was also complied with by Opposite Party No.2 vide order dtd.29.09.2021 under Annexure-17-Series. However, Page 9 of 40 // 10 // on the face of the benefit of retrospective promotion being extended in favour of the applicants in O.A No.1673(C)/1993, 1804/1998 as well as O.A. No.3885(C) of 2012 and O.A No.537/2015, the claim of the present petitioner once again was rejected vide the impugned order dtd.02.05.2022 under Annexure-19. 2.13. Learned counsel for the Petitioner contended that since similar benefit of retrospective promotion to the rank of Junior SES as against year wise vacancy in terms of the order passed by the Tribunal in O.A No.1673(C)/1993, 1804/1998 as well as O.A. No.3885(C) of 2012 and O.A No.537/2015 was allowed by the State-Opposite Parties, on the face of the order passed by the Tribunal initially in its order dtd.14.09.2015 under Annexure-9 and further order passed by this Court on 29.03.2017 under Annexure-10 and 24.02.2021 under Annexure-13, the claim of the Petitioner could not have been rejected inter alia on the ground indicated in the impugned order dtd.02.05.2022. 2.14. It is also contended that the Original Application filed by the present petitioner was allowed initially vide order dtd.14.09.2015 with a direction to extend the benefit of retrospective promotion as has been extended in favour of the applicants in O.A. Nos. 1673(C)/1993 & 1804/1998. While the claim of the Petitioner on the face of such order Page 10 of 40 // 11 // was rejected ultimately vide the impugned order, but similar claim allowed by the Tribunal vide order dtd.16.09.2016 in O.A. No.537(C) of 2015 and order dtd.16.09.2016 passed in O.A. No.3885(C) of 2012 was allowed by the State vide order issued on 31.08.2021 and 29.09.2021 under Annexure-17-Series. 2.15. It is accordingly contended that since similar benefit has been extended in favour of similarly situated Teachers in terms of order passed by the Tribunal in all those Original Applications so indicated hereinabove, the ground on which Petitioner’s claim has been rejected is not sustainable in the eye of law. In support of his aforesaid submissions, learned counsel for the Petitioner relied on the decisions of the Hon’ble Apex Court in the case of Maharaj Krishan Bhatt & Another vs. State of Jammu and Kashmir & Others reported in (2008) 9 SCC-24, State of Uttar Pradesh & Others vs. Arvind Kumar Srivastava & Others reported in (2015) 1 SCC-347. 2.16. In the case of Maharaj Krishan Bhatt & Another, Hon’ble Apex Court in Para-21, 22 and 23 has held as follows:- Page 11 of 40 // 12 // respondent-State that Article 14 or 16 of “21. It was no doubt contended by the learned counsel for the the Constitution cannot be invoked and pressed in service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute. 22. There can be no two opinions about the legal proposition as submitted by the learned counsel for the State. But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ petition No. 519 of 1997 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said order and dismissed Special Leave Petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and order in Writ Petition No. 519 of 1987 in the case of present writ petitioners also. 23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State Authorities ought to have gracefully accepted the decision by granting similar benefits to present writ-petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed Letters Patent Appeal by affirming the order of the Single Judge. The Letters Patent Appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored”. 2.17. Similarly in the case of Arvind Kumar Srivastava & Others, Hon’ble Apex Court in Para-22 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: (1) 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 Page 12 of 40 // 13 // 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. (2) However, this principle is subject to well recognized 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. (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 person. 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 & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding 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 laches and delays or does not suffer from either acquiescence. 2.18. Learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court in the case of State of Karnataka & Others vs. C. Lalitha, reported in (2006) 2 SCC-747. Hon’ble Apex Court in Para-29 of the said 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 Page 13 of 40 // 14 // 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”. 2.19. Learned counsel for the Petitioner also relied on another order passed by this Court on 04.04.2023 in WPC(OAC) No.1702 of 2018. This Court placing reliance on the order passed in O.A No.3885(C) of 2012, held as follows in Para-6. “6. Having heard learned counsel for the parties and taking into account the order passed by the Tribunal in O.A NO.3885(C) of 2012 and batch, it is the view of this Court that the petitioner is also entitled to get the benefit of the said order. Therefore, this Court while disposing the Writ Petition, directs Opp. Party No.2 to pass appropriate order taking into account the order passed by the Tribunal on 16.09.2016 in O.A NO.3885(C) of 2012 and batch and the benefits extended in favour of the applicants vide order dated 03.09.2021 and 29.09.2021. The aforesaid exercise shall be undertaken and completed within a period of three months from the date of receipt of this order”. 3. Per contra, learned Addl. Government Advocate for the State on the other hand made his submissions basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. It is the case of the Opposite Parties that the Petitioner was appointed as an Asst. Teacher in Trained Matric Post on Ad hoc basis for a period of 89 days. While so continuing, Petitioner acquired B.Ed. qualification in the year 1989. However, the services of the Petitioner was regularized vide order dtd.17.09.1998 and the Page 14 of 40 // 15 // Petitioner thereafter was given promotion to the rank of Trained Intermediate vide order dtd.25.11.2003 w.e.f. 01.12.2003. Petitioner thereafter was given the benefit of promotion to the rank of Junior SES vide order dtd.05.10.2005. 3.1. It is contended that Petitioner basing on the order passed on 05.10.2005 under Annexure-2 accepted the benefit of promotion to the rank of Junior SES without any objection and for the first time in the year 2014, he claimed the benefit of retrospective promotion by filing O.A No.87(C) /2014. The Tribunal when vide order dtd.14.09.2005 under Annexure-9 allowed the claim, the State being aggrieved by such order approached this Court in W.P.(C) No.22983 of 2016. The writ petition when was disposed of vide order dtd.29.03.2017 with confirmation of the order passed by the Tribunal, the claim of the Petitioner was initially rejected by the State vide order dtd.18.09.2017 under Annexure-11. 3.2. But this Court vide order dtd.24.02.2021 under Annexure-13 when directed the State to pass a reasoned order by giving opportunity of hearing to all concerned, the matter was carried by the present Petitioner before the Hon’ble Apex Court in Special Leave to Appeal No.7408- 7413/2021. Hon’ble Apex Court vide order dtd.27.01.2022, Page 15 of 40 // 16 // while disposing the Special Leave to Appeal though held the order passed by this Court on 24.02.2021 as just and proper, but observed that State has to take a decision after due consideration of the rival contentions and on its own merit. 3.3. In terms of the order passed by this Court on 24.02.2021 under Annexure-13 and further order passed by the Hon’ble Apex Court on 27.01.2022 under Annexure-14, State after due consideration of the claim of the Petitioner rejected the same vide order dtd.02.05.2022 under Annexure-19. 3.4. It is contended that Petitioner when was extended with the benefit of promotion to Junior SES cadre vide order dtd.05.10.2005 under Annexure-2, Petitioner accepted the same without raising any objection whatsoever. Petitioner when for the first time raised his claim to get the benefit of retrospective promotion placing reliance on the provisions contained under Rule-10(a) of 1972 Rules, the 1972 Rules was already repealed with Introduction of Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 on 17.12.1993. Therefore, by the time the Petitioner raised his claim to get the benefit of retrospective promotion in accordance with the provisions contained under Rule-10(a) Page 16 of 40 // 17 // and 10(b) of 1974 rules, the said rule was no more existence having been repealed w.e.f. 17.12.1993. 3.5. Therefore, in view of the decision of the Hon’ble Apex Court in the case of State of Odisha & Another vs. Anup Kumar Senapati & Anothers, reported in (2019) 19 SCC- 626, Petitioner’s claim cannot be considered in terms of the repealed provisions so contained under 1972 Rules. Hon’ble Apex Court in Para-32 of the judgment in the case of Anup Kumar Senapati & Anothers has held as follows:- “32. It is apparent from the aforesaid discussion that what is unaffected by the repeal of a statute is a right acquired or accrued and not mere hope or expectation of or liberty to apply for acquiring a right. There is a distinction in making an application for acquiring a right. If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right is saved. Right to take advantage of a provision is not saved. After repeal, an advantage available under the repealed Act to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to grant the relief and investigation was required whether relief should be granted or not. The repeal would not save the right to obtain such a relief. The right of preemption is not an accrued right. It is a remedial right to take advantage of an enactment. The right of a Government servant to be considered for promotion under repealed rules is not a vested right unless repeal provision contains some saving and right has been violated earlier”. 3.6. Learned State Counsel in addition to Para-32, also relied on Para-27 and 39 to 45 of the decision. Hon’ble Apex Court in Para-27 and 39 to 45 in the case of Anup Kumar Senapati has held as follows:- Page 17 of 40 // 18 // 27. In our opinion, the prayer made to release grant-in-aid under the 1994 Order after its repeal was misconceived and would not be possible for any Government within the economic capacity to release the grant-in-aid retrospectively. Delay by itself defeats the right, if any, to claim the grant-in- aid which is dependent upon the option of the institution to apply for it. They may choose not to apply for the grant-in-aid imposed by the as Government. Thus, original applications filed belatedly after the repeal of the 1994 Order, could not have been entertained at all and the employees filing the applications after repeal of the 1994 Order, cannot be said to be entitled for any relief owing to laches having slept over their right, if any. available under the 1994 Order. it comes with several riders as xxx xxx xxx 39. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High Court and grants- in-aid have been released under the 1994 Order as such on the ground of parity this Court should not interfere. No doubt, there had been a divergence of opinion on the aforesaid issue. Be that as it may. In our opinion, there is no concept of negative equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not available a person cannot claim rights to be treated equally as the right does not exist. negative equality when the right does not exist, cannot be claimed. 40. In Basawaraj v. LA * O ^ 33 it was held thus: ( SCC p. 85. para 8) "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be 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 the same superior court irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Sing Anand Buttons Ltd. v. State of Haryana for repeating or multiplying Page 18 of 40 // 19 // 35, K.K. Bhalla v. State of M.P.36 and Fuljit Kaur v. State of Punjab37.)" 41. In Chaman Lal v. State of Punjab38, it was observed as under: (SCC pp. 720-21, para 16) "16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. LA033 considered this issue and held as under: (SCC p. 85, para 8) 8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be 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 the same superior court irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. for repeating or multiplying (Vide Chandigarh Admn. v. Jagjit Singh 34, Anand Buttons Ltd. v. State of Haryana³5, K.K. Bhalla v. State of M.P.36 and Fuljit Kaur v. State of Punjab37.)" 42. In Fuljit Kaur v. State of Punjab37, it was observed thus: (SCC p. 462. para 11) Punjab39, the settled in view of "11. The respondent cannot claim parity with D.S. Longia v. legal State of 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 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 Page 19 of 40 // 20 // 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 40, Panchi Devi v. State of Rajasthan and Shanti Sports Club v. Union of India 2)" 43. In Doiwala Sehkari Shram Samvida Samiti Lid. v. State of Uttaranchal, this Court in the context of negative equality observed thus: (SCC pp. 655-56. para 28) "28. This Court in Union of India v. International Trading Co. 44 has held that two wrongs do not make one right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In d case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government." 44. In Bondu Ramaswamy v. BDA 45, this Court observed thus: (SCC p. 194. para 146) "146. If the rules/scheme/policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the rules or scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would amount to enforcing negative equality. But where large extents of land of others are indiscriminately and arbitrarily deleted, then the court may grant relief, if on account of such deletions, the development scheme for that area has become inexecutable or has resulted in abandonment of the scheme." 45.In Kulwinder Pal Singh v. State of Punjab 46, this Court while relying upon State of U.P. v. Rajkumar Sharma 47, observed as under: (Kulwinder Pal Singh case 46, SCC pp. 539-40, para 16) "16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage Page 20 of 40 // 21 // negative equalities. In State of U.P. v. Rajkumar Sharma¹¹ it was held as under: (SCC p. 337, para 15) '15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U .P.^ 48 ; Jaipur Development Authority v. Daulat Mal Jain49; State of Haryana v. Ram Kumar Mann 50; Faridabad CT Scan Centre v. D.G. Health Services51; Jalandhar Improvement Trust v. Sampuran Singh52; State of Punjab v. Rajeev Sarwal53; Yogesh Kumar v. State (NCT of Delhi )^ 54. Union of India v. International Trading Co.44 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority55.)" Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality." 3.7. Learned Addl. Government Advocate also relied on the decisions in the case of 1) Union of India & Another vs. Manpreet Singh Ponam etc, reported in 2022 Levelaw (SC)-254, 2) State of Himachal Pradesh & Others vs. Raj Kumar & Others, 3) C. Jacob vs. Director of Geology & Mining & Another, 4) Union of India & Others vs. M.K. Sarkar, 5) State of Orissa & Another vs. Mamata Mohanty, 6) Union of India & Others vs. Chaman Rana, 7) Shiba Shankar Mohapatra & Others vs. State of Orissa & Others. Hon’ble Apex Court in the case Manpreet Singh Ponam etc. in Para-18 to 20 has held as follows:- “18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. Page 21 of 40 // 22 // In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification. 19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that: “5….We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can 8 be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.” 20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that: 45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683. In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) “45. … (i) The effective date of selection has to be understood in the Page 22 of 40 // 23 // context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693.” is done, if it 3.8. State of Himachal Pradesh & Others vs. Raj Kumar & Others reported in 2022 LiveLaw (SC)-502. Hon’ble Apex Court in the case Raj Kumar & Others. in Para-36 & 37 has held as follows:- “36. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: to 1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah’s case must be understood in the context of the rules involved therein. 58 2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates 59. Page 23 of 40 // 24 // 3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules.
Decision
order dtd.14.09.2015 under Annexure-9 and with a direction on the Opposite Parties to extend the benefit as has been Page 35 of 40 // 36 // extended in favour of the applicants in O.A. No.1673(C) of 1993 and 1804 of 1998. 7.3. The order passed by the Tribunal on 14.09.2015 though was assailed by the State before this Court in W.P.(C) No.22983 of 2016, but this Court vide order dtd.29.03.2017 under Annexure-10 was not inclined to interfere with the order passed by the Tribunal and disposed of the matter with a direction on Opposite Party No.1 to take a decision and pass a reasoned order. However, on the face of the order passed by the Tribunal on 14.09.2015 under Annexure-9 so confirmed by this Court in its order dtd.29.03.2017, the claim of the Petitioner was rejected by Opposite Party No.1 vide order dtd.18.09.2017 under Annexure-11. 7.4. The rejection of the claim of the Petitioner vide order dtd.18.09.2017 was not accepted by the Tribunal and the Tribunal vide order dtd.17.11.2017 under Annexure-12 directed for filing of the compliance report to its order passed on 18.09.2015. But as found from the record while the matter stood thus, this Court in CONTC No.1097 of 2018 passed a further order on 24.02.2021 by holding that since the Government has already implemented the order by giving ante-dated promotion to some of the applicants, if the present Petitioner falls within the purview of those Page 36 of 40 // 37 // orders, in such event Opposite Party No.1 shall afford an opportunity of hearing to the Petitioner and pass a reasoned order to that effect. 7.5. Even though the order passed by this Court on 24.02.2021 under Annexure-13 was assailed by the present Petitioner before the Hon’ble Apex Court in Special Leave to Appeal No.7408-7413 of 2021, but Hon’ble Apex Court while holding the order passed by this Court on 24.02.2021 was a correct one, further observed that Opposite Party No.1 shall consider the merits and demerits of rival contentions and after going through the same on its own merit passed a fresh order. Pursuant to the order passed by this Court on 24.02.2021 and further order passed by the Hon’ble Apex Court on 27.01.2022 under Annexure-14, the claim of the Petitioner was considered and rejected vide order dtd.02.05.2022 under Annexure-19. 7.6. As found from the record, which is not disputed similar benefit as claimed by the present Petitioner has been allowed by the State while implementing the order passed in O.A No.1673(C) of 1993 and O.A No.1804 of 1998 vide order issued on 28.09.2011 under Annexure-3 and order issued on 20.02.2013 under Annexure-5 with consequential order dtd.26.02.2013 under Annexure-6. As further found from the record, considering the request Page 37 of 40 // 38 // made by the Association when Opposite Party No.1 requested Opposite Party No.2 to prepare the gradation list of Junior SES Teacher and to examine the entitlement of similarly situated Teachers, Opposite Party No.2 vide his letter dtd.07.02.2014 under Annexure-8 while submitting the gradation list clearly opined to extend the benefit of retrospective promotion in favour of the present Petitioner and similarly situated Teachers belonging to their association vide Annexure-9. On the face of such request made by Opposite Party No.2 when the claim of the Petitioner was not considered, Petitioner approached the Tribunal in O.A No.87(C) of 2014. Therefore, the plea taken by the State that the claim of the petitioner is a belated one and in view of the decisions of the Hon’ble Apex Court in the case of Arvind Kumar Srivastava & C. Lalitha as cited supra is not acceptable to this Court. 7.7. Not only that on the face of the order passed by the Tribunal vide order dtd.14.09.2015 under Annexure-9, with confirmation of the same by this Court, Opposite Party No.1 was not supposed to reject the claim vide order dtd.18.09.2017. But basing on similar order passed by the Tribunal in O.A. No.537(C) of 2015 and 3885(C) of 2012 as well as O.A No.678(C) of 2012, similar benefit was extended in favour of similarly situated Teachers vide order Page 38 of 40 // 39 // dtd.31.08.2021 and 29.09.2021 under Annexure-17-Series. Not only that similar benefit in terms of the order passed by the Tribunal in O.A No.3815(C) of 2013 on 16.09.2016 was also allowed by the Director-Opposite Party No.2 vide order dtd.17.10.2022. Since similar benefit in favour of similarly situated Teachers pursuant to the order passed by the Tribunal in different Original Applications starting from O.A No.1673(C) of 1993 was extended vide order under Annexures-3, 6, 17-Series as well as Annexure-21 and Petitioner has raised his claim at the appropriate time, the ground on which the claim of the Petitioner has been rejected vide the impugned order dtd.02.05.2022 under Annexure-19 is not sustainable in the eye of law in view of the decision of the Hon’ble Apex Court in the case of Arvind Kumar Srivastava & C. Lalitha as cited (supra). 8. In view of such position, this Court is inclined to quash the order dtd.02.05.2022 so passed by the Government-Opposite Party No.1 under Annexure-19. While quashing the same, this Court directs Opposite Party Nos.1 and 2 to extend the benefit of retrospective promotion to the rank of Jr. SES basing on year wise vacancies as was available in the light of the benefit extended in favour of similar Teachers vide order issued under Annexures-3, 6, Page 39 of 40 // 40 // 17 Series as well as Annexure-21 within a period of three (3) months from the date of receipt of this order. However, there shall be no order as to costs. 9. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 24th of January, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jan-2024 11:05:32 Page 40 of 40