The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAS) No.72 of 2012 Surendra Kumar Prusty …. Petitioner Mr. S.K. Purohit, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 06. 1. This matter is taken up through Hybrid Arrangement ORDER 18.04.2023 (Virtual/Physical) Mode. 2. Heard Mr. S.K. Purohit, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “i. And pass any further order/direction as deemed fit and proper by your lordships in the aforesaid facts and circumstances of the case. ii. Direct the State respondents to pay the actual differential back salary for the period from her date of appointment to 1.1.2011 instead of paying nottional benefits for those periods. iii. Quash the condition No. 1 under Anenxure-4.” // 2 // 4. It is the case of the Petitioner that the Petitioner was appointed as an Assistant Teacher by the then Managing Committee, Orient Colliery M.E. School on 08.12.1991. While continuing as such, the School in question was taken over by the Govt. w.e.f.01.04.1991 vide Notification issued by the Govt. on 22.08.1992. In spite of such taken over the school w.e.f.01.04.1991 when the services of the Petitioner was not approved, the Petitioner approached the Tribunal in O.A. No. 25(S) of 1996. The Tribunal vide order dtd.25.03.1996 while disposing the matter, directed the Opp. Parties to make an enquiry on the claim of the Petitioner and see that the salary of the Petitioner is paid within 3 (three) months from the date of receipt of this order. As the order passed by the Tribunal on 25.03.1996 was not complied with and the Petitioner when filed a Contempt Petition, he was intimated that in compliance of the order so passed on 25.03.1996, the claim of the Petitioner has been rejected by the O.P. No. 2 vide order dtd.04.08.1998 on the ground that the Petitioner has no prescribed qualification and for which he is not entitled to get the salary from his date of appointment. 4.1. It is contended that subsequent to passing of the order on 04.08.1998, O.P. No. 3 vide order dtd.18.05.1999 when requested the Secretary of the Managing Committee of the School to Page 2 of 20 // 3 // terminate the services of the Petitioner, the Petitioner was not allowed to discharge his duty by the Headmaster of the School basing on such order issued by the O.P. No. 3. The Petitioner being
Facts
aggrieved by such action of the Opp. Parties, again approached the Tribunal in O.A. No. 873(C) of 2000, subsequently renumbered on transfer as O.A. No. 358 of 2007. In the aforesaid Original Application the Petitioner prayed for approval of his services as against the post of Assistant Teacher and for a direction to pay his the salary w.e.f. his initial date of appointment.
Legal Reasoning
terminate the services of the Petitioner is prima facie illegal and not sustainable in the eye of law. Since the Petitioner basing on such order issued by the O.P. No. 3 on 18.05.1999 was not allowed to discharge her duty by the Headmaster of the school, the Petitioner approached the Tribunal in O.A. No. 873(C) of 2000, subsequently renumbered as O.A. No. 358 of 2007. The Tribunal vide order Page 6 of 20 // 7 // dtd.20.07.2009 while disposing the matter though directed the Opp. Party Nos. 1 & 2 to take a decision on the Petitioners’ claim but observed that State is required to take a policy decision in the matter. 4.9. While complying the order so passed by the Tribunal, the Petitioner though was reinstated in his service vide order dtd.30.12.2011 under Annexure-4, but since a condition was imposed to extend the benefit on notional basis till 31.10.2011 and actual financial benefit w.e.f.01.11.2011, the Petitioner is aggrieved by such stipulation contained in the order under Annexure-4. Since the Petitioner in view of the illegal action of the O.P. No. 3 was kept out of employment w.e.f.18.05.1999 and from the date of taken over she was not paid his salary due to non-approval of his service even though he continued in the school by discharging his duty, the Petitioner is entitled to get the financial benefit from his initial date of appointment. Accordingly, it is contended that the condition imposed under Cl. 1 of the order dt.30.12.2011 under Annexure-4 is not sustainable in the eye of law. 5. Mr. S. Rath, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the O.P. No. 3. It is contended that as the Page 7 of 20 // 8 // services of the Petitioner after the school was taken over was not approved for the period from 01.04.1991 to 18.05.1999 and the Petitioner was terminated from his services w.e.f.18.05.1999 till he was reinstated vide order dtd.30.12.2011 under Anenxure-4, the condition was imposed to treat the period from 01.04.1991 till 31.10.2011 on notional basis and to extend the financial benefit w.e.f.01.11.2011. It is also contended that such an order was passed by the O.P. No. 3 under Annexure-4 basing on the order passed by the Govt. on 07.12.2011. 5.1. It is also contended that since the Petitioner never discharged his duty w.e.f.18.05.1999 to 31.10.2011 in view of the order of termination issued by the O.P. No. 3 on 18.05.1999, the Petitioner is not eligible and entitled to get any financial benefit for the said period. It is also contended that as the services of the Petitioner was never approved after the school was taken over w.e.f.01.04.1991, the Petitioner is also not entitled to get any financial benefit from 01.04.1991. Accordingly, it is contended that no illegality has been committed by the Opp. Party No. 3 in imposing the condition to treat the period of service from 01.04.1991 till 31.10.2011 on notional basis vide order under Annexure-4. Page 8 of 20 // 9 // 6. Since in course of hearing it is found that the order of reinstatement has been passed under Annexure-4 by the O.P. No. 3 basing on the order passed by the Govt. on 07.12.2011 and the said order was not available in the case record, this Court vide its order dtd.23.02.2023 directed the learned State Counsel to produce G.O. No. 24052 dtd.07.12.2011, basing on which the order under Annexure-4 was so passed. In terms of the said order learned ASC produced the order passed by the Govt. on 07.12.2011. From the said order it is found that the Govt. while directing for implementation of the order passed by the Tribunal under Annexure-1, requested the O.P. No. 3 to implement the same by treating the period from 01.04.1991 till 31.10.2011 on notional basis and to extend the financial benefit w.e.f.01.11.2011. 6.1. Learned ASC also produced the so called order issued by the O.P. No. 3 on 18.05.1999 wherein request was made to the Secretary of the School to terminate the services of the Petitioner and two (2) others. Copies of such orders produced by the learned ASC vide letter dtd.05.04.2023 and 20.02.2023 of the BEO, Jharsuguda be kept in record. 6.2. Basing on the order issued by the Govt. on 07.12.2011 since the O.P. No. 3 passed the order of reinstatement under Annexure-4 Page 9 of 20 // 10 // by imposing the condition that the period from 01.04.1991 till 31.10.2011 will be treated on notional basis, learned ASC contended that no illegality has been committed by the O.P. No. 3 in imposing such a condition in the order at Annexure-4. 7. Mr. Purohit, learned counsel for the Petitioner contended that since by the time the order dtd.30.05.1999 was issued by O.P. No.3, the School was already taken over w.e.f.01.04.1991 basing on the resolution issued by the Govt. on 27.08.1992, the direction to the Secretary of the School to terminate the services of the Petitioner is not sustainable in the eye of law. Basing on such order of O.P. No. 3 the Petitioner since was kept out of service w.e.f.18.05.1999 till the order of reinstatement was issued under Anenxure-4, the Petitioner is eligible and entitled to get full salary for the period from 01.04.1991 and/or from the date of his initial appointment till 31.10.2011. 7.1. Mr. Purohit, learned counsel for the Petitioner in support of his aforesaid contention relied on the following decisions of the Hon’ble Apex Court in the case of:- 1. State of Mysore Vs. C.R. Seshadri & Ors. (AIR 1974 SC 460) 2. P.S. Mahal & Ors. Vs. Union of India & Ors. (AIR 1984 SC 1291) Page 10 of 20 // 11 // 3. Vasant Rao Roman Vs. Union of India through the Central Railway, Bombay & Ors. (1993 Supp (2) SCC 324) 4. State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai (AIR 2007 SC 2645) 5. Shiv Nandan Mahto Vs. State of Bihar & Ors. ((2013) 11 SCC 626) 6. Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited & Ors.(AIR 2016 SC 157. 7.2. In the case of State of Mysore (supra) Hon’ble Apex Court in Para 4, 5 & 8 has held as follows:- “4. The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Court - both rendered in appeals from the Mysore High Court-where probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment. 5. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 (366): (AIR 1968 SC 1113) Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959......The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that case thus: "We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the post of senior statistical Page 11 of 20 // 12 // assistants on the relevant dates when officers junior to them were promoted, and if so what consequential monetary benefits should be allowed to them." XXX XXX XXX 8. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioner's claim and what was a service is- sue has now been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the peculiary expectation of the superannuated public servant - not unusual in government - we direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his due-if so found on or before April 15, 1974. The government's inexplicable indifference is not placing before the Court the relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner first respondent, for, he wages of winner's sloth is denial of costs, and something more.” 7.3. In the case of P.S. Mahal (supra) Hon’ble Apex Court in Para 38 has held as follows:- “38. We would therefore allow the writ petition and quash and set aside the Memorandum and the seniority list dated 14th August, 1975 and the Rules of 1976. We would direct the Government to prepare a new seniority list of Executive Engineers in the light of the observations contained in this judgment. The Page 12 of 20 // 13 // Government will pre- pare such seniority list within a period of two months from today. When the seniority in the grade of Executive Engineers is rearranged in accordance with the directions given in the judgment, the cases of Assistant Engineers who would have been due for consideration for pro- motion as Superintending Engineers and there- after as Chief Engineers on the basis of their revised seniority, will be considered by a duly constituted Departmental Promotion Committee as on the dates on which they would have been due for such consideration if the correct seniority had been given to them, and if on the basis of their performance and record as on those dates they would have been selected for promotion, they must be given promotion with retrospective effect from such dates and if necessary, supernumerary posts in the grades of Superintending Engineers and Chief Engineers shall be created for the purpose of accommodating them and all arrears of salary and allowances shall be paid to them on the basis of such retrospective pro- motions. We may make it clear that those Assistant Executive Engineers who have been promoted as Superintending Engineers ox Chief Engineers up to the date of this judgment shall not, on account of revised seniority in the grade of Executive Engineers, be disturbed from the positions which they are occupying at present but their seniority in such higher grades will have to be rearranged on the basis of the directions given in the judgment.” 7.4. In the case of Vasant Rao Roman (supra) Hon’ble Apex Court in Para 4 & 5 has held as follows:- Page 13 of 20 // 14 // “4. In our view, the Tribunal was wrong in applying the aforesaid memorandum in the case of the appellant before us. Admittedly, neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which the appellant was not responsible. There was shortage of literate Shunters at Gwalior during 1960. The appellant being literate was deputed for table work and therefore for administrative reasons he could not complete requisite number of firing kilometers. Thus, with no fault on his part his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of having not completed the requisite number of firing kilometers. The Tribunal itself has allowed the claim of the appellant regarding seniority over his juniors, considering force in the contention of the appellant. Thus, in the facts and circumstances of this case, we find no justification whatsoever for not allowing the arrears of emoluments to the appellant of the post of Shunter 'B' from June 12, 1961 and that of the post of Driver 'C' from December 17, 1965. 5. In the result, we allow this appeal and modify the order of the Tribunal to the effect that the appellant shall also be entitled to get all arrears of emoluments with effect from June 12, 1961 as Shunter 'B' and with effect from December 17, 1965 as Driver 'C'. The respondents shall make the payment of the arrears to the appellant within three months from the date of this order. The appellant shall also be entitled to Rs 3,000 as costs.” Page 14 of 20 // 15 // 7.5. In the case of State of Kerala (supra) Hon’ble Apex Court in Para 4 & 5 has held as follows:- “4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15.6.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ram- krishnaiah & Ors. vs. Union of India & Anr. [(1989) 2 SCC 541); Virender Kumar, G.M., Northern Railways vs. Avinash Chadha & Ors. vs. O.P. Gupta & Ors. [(1996) 7 SCC 533]; A.K. Soumini vs. State Bank of Travancore & Anr. [(2003) 7 SCC 238] and Union of India & Anr. vs. Tarsem Lal & Ors. [(2006) 10 SCC 145]. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India & Ors. vs. K.V. Jankiraman & Ors. [(1991) 4 SCC 109]; State of A.P. vs. K.V.L. Narasimha Rao & Ors. [(1999) 4 SCC 181); Vasant Rao Roman vs. Union of India & Ors. [1993 Supp (2) SCC 324] and State of U.P. & Anr. Vs. Vinod Kumar Srivastava [(2006) 9 SCC 621]. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt Page 15 of 20 // 16 // or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also. 5. However, so far as present case is concerned, as per directions given by the Court, petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. There- fore, the petitioner was promoted from retrospective effect 1.e. 15.9.1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed O.P. No. 585 of 1975 i.e.15.6.1972. This appears to be reason- able. The petitioner did not approach the Court for the back wages from 15.9.1961 but he filed a petition dated 15.6.1972 and the Court granted the benefit from the date F of filing of the petition before the Court i.e. 15.6.1972. The incumbent in the meanwhile has retired on 31.7.1980. Therefore, Page 16 of 20 // 17 // looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.” 7.6. In the case of Shiv Nandan Mahto (supra) Hon’ble Apex Court in Para 8 & 9 has held as follows:- “8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is. therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service. 9. Consequently, the appeal is allowed. The order passed by the Division Bench is quashed and set aside. The appellant has already been reinstated in service. The respondents are, however, directed to pay to the appellant the entire full back wages from the period he was kept out of service till reinstatement. The full back wages shall be paid to the appellant with 9% interest. Let the amount be paid to the appellant within a period of three months from the date of receipt of copy of this order.” Page 17 of 20 // 18 // 7.7. In the case of Shobha Ram Raturi (supra) Hon’ble Apex Court in Para 3 & 4 has held as follows:- “3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay". 4. For the reasons recorded hereinabove, are satisfied, that the impugned order passed by the High Court, to the limited ex- tend of denying wages to the appellant, for the period from 1.1.2003 to 31.12.2005 de- serves to be set aside. The same is accordingly hereby set aside.” 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that by the time the Petitioner was appointed as an Assistant Teacher vide order dtd.08.12.1991 the School was a privately managed school. As found from the materials placed, the School was taken over w.e.f.01.04.1991 basing on the resolution issued by the Govt. on 22.08.1992. Since the School was taken over w.e.f.01.04.1991, as Page 18 of 20 // 19 // per the considered view of this Court, the Secretary of the School has no role to play with the Management of the School after such taken over. The order passed by the O.P. No. 3 on 18.05.1999 requesting the Secretary of the School to terminate the services of the Petitioner is therefore not legal and justified. 8.1. The Petitioner from the date of his initial appointment was not only allowed to continue but also he continued in the school even after the school was taken over w.e.f.1.4.1991 as per Resolution dtd.22.08.1992. Because of the order passed by the O.P. No. 3 on 18.05.1999, the Petitioner was not allowed to discharge his duty, till he was reinstated vide order dtd.30.12.2011 under Annexure-4. Therefore, the condition imposed under Cl. 1 in the order at Annexure-4 to treat the period of service from 1.4.1991 to 31.10.2011 on notional basis is not sustainable. 8.2. Placing reliance on the decisions so cited by the learned counsel for the Petitioner and the fact that Petitioner was not paid any salary from the date of taken over even though he continued in the school and kept out of employment because of the illegal order passed by O.P. No. 3 on 18.05.1999, this Court is of the view that substantial justice will be made, if the Petitioner is allowed financial benefit to the extent of 50% for the period from Page 19 of 20 // 20 // 08.12.1992 till 31.10.2011. While holding so, this Court directs the Opp. Parties more particularly O.P. No. 2 to take effective steps for release of 50% of the entitlement in favour of the Petitioner as due and admissible for the period from the date of his initial appointment till 31.10.2011 within a period of 4 (four) months from the date of receipt of this order. 9. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 20 of 20
Arguments
4.2. It is contended that vide order dtd.27.04.2007 under Annexure- 1 Tribunal was pleased to quash the order dtd.04.08.1998 and remitted the matter to O.P. Nos. 1 & 2 to treat the O.A. as representation of the Petitioner and to pass a speaking order within a period of six (6) months from the date of receipt of the order. While directing so, the Tribunal also observed that the State Govt. is required to take a policy decision keeping in view the resolution dtd.19.02.1994. It is also observed that the order shall not stand as a bar in assessing and disbursing the salary of the Petitioner for the period he rendered service. 4.3. It is contended that while implementing the order passed by the Tribunal on 27.04.2007 under Annexure-1, O.P. No. 2 called for a Page 3 of 20 // 4 // report from the O.P. No. 3 with regard to the financial implication for implementation of the order dtd.27.04.2007. On receipt of the report from O.P. No. 3 vide his letter dtd.06.11.2010, Petitioner was reinstated in his service and posted in Orient Colliery Nodal U.P. School vide Office order dtd.30.12.2011 of the O.P. No. 3. 4.4. But while passing such order of reinstatement vide order dtd.30.12.2011, since a condition was imposed that the Petitioner will be given notional benefit w.e.f.01.04.1991 i.e. the date of taken over of the School and the actual financial benefit will only be allowed w.e.f.01.11.2011 under Annexure-4, the Petitioner seeking extension of the benefit of the salary from his initial date of appointment till 01.11.2011, moved the O.P. No. 1 under Annexure-5. When the prayer as made in Annexure-5 was not considered, the present matter was filed in O.A. No. 72(S) of 2012. 4.5. Learned counsel for the Petitioner contended that since the Petitioner was appointed as an Assistant Teacher by the Managing Committee of the School and he was in the service roll when the school was taken over w.e.f.01.04.1991 as per the Notification issued by the Govt. on 22.08.1992, the services of the Petitioner should have been approved from the date of his initial appointment i.e.08.12.1991. After such taken over of the School when the Page 4 of 20 // 5 // services of the Petitioner was not approved and accordingly no financial benefit was extended in her favour, the Petitioner approached the Tribunal in O.A. No. 25(S) of 1996. The Tribunal when directed the Opp. Parties to take a decision on the Petitioners’ claim, the same was rejected by the O.P. No. 2 vide his order dtd.04.08.1998. After passing of such order O.P. No. 3 when requested the Secretary of the Managing Committee of the School vide order dtd.18.05.1999 to terminate the Petitioner from his services, the Headmaster of the School basing on such order did not allow the Petitioner to discharge his duty. But the Petitioner since his initial appointment was allowed to continue till the order dt.18.05.1999 was issued by O.P. No. 3. 4.6. Accordingly, the Petitioner approached the Tribunal in O.A. No. 873(C) of 2000, which was renumbered as O.A. No. 358 of 2007. In the said O.A. the Tribunal vide its order under Annexure-1 while directing the Opp. Party Nos. 1 & 2 to take a decision on the Petitioners’ claim, also observed that for compliance of the order, the State is required to take a policy decision in the matter, Petitioner in compliance of the said order though was reinstated vide order dtd.30.12.2011 under Annexure-4 of O.P. No. 3, but since a condition was imposed to extend the benefit only on Page 5 of 20 // 6 // notional basis w.e.f.01.04.1991 and the actual financial benefit w.e.f.01.11.2011, the Petitioner is before this Court with the prayer as indicated hereinabove. 4.7. Learned counsel for the Petitioner vehemently contended that since the school was taken over w.e.f.01.04.1991 vide Notification dtd.22.08.1992 of O.P. No. 1, O.P. No. 3 was not supposed to request the Secretary of the School to terminate the services of the Petitioner vide order dtd.18.05.1999. The Petitioner who was continuing although since his initial appointment was not allowed to discharge his duty because of the illegal order issued by O.P. No. 3 on 18.05.1999. 4.8. It is contended that after taken over of the School by the Govt., the Secretary of the School had no role to play with the management of the School. Therefore, the order so passed by the O.P. No. 3 on 18.05.1999 directing the Secretary of the School to