Orissa High Court
Sanjib Kumar Mohanty vs State Of Odisha & Others .... Opposite ... on 7 March, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14451 of 2016
In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950.
..................
Sanjib Kumar Mohanty .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. P.K. Rath, R.N. Parija,
A.K. Rout, S.K. Pattnaik, A.
Behera, P.K. Sahoo & S.K.
Behera.
For Opp. Parties : M/s. Mr. Sangram Jena,
Addl. Government Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:07.02.2024 and Date of Judgment:06.03.2024
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Biraja Prasanna Satapathy, J.
1. The present Writ Petition has been filed inter alia challenging the order dtd.29.07.2016 so issued by the Joint Secretary to Government, Department of Higher Education, Government of Odisha under Annexure-1 and with a further prayer to direct the Opposite Parties to place the Petitioner in the Senior Lecturer Scale w.e.f. 01.06.1996 and the Reader Scale w.e.f. 01.06.2004 with all consequential service benefits.
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2. It is the case of the Petitioner that Petitioner was appointed as a Lecturer in Physics by the then Governing Body of Choudwar College, vide order of appointment issued on 18.04.1988. It is contended that the post in which Petitioner was appointed i.e. Lecturer in Physics was admissible w.e.f. 06.09.1982.
3. It is contended that the services of the Petitioner as against the 1st post of Lecturer in Physics in Choudwar College was duly approved vide order dtd.10.07.1995 of Opposite Party No.2 under Annexure-2. Petitioner vide the said order was held entitled to get grant-in-aid @ 1/3rd w.e.f. 01.06.1989, 2/3rd w.e.f. 01.06.1991 and full salary cost w.e.f. 01.06.1993.
4. It is contended that the services of the Petitioner when was so approved vide order dtd.10.07.1995 by allowing 1/3rd grant w.e.f. 01.06.1989 in place of 01.06.1988, Petitioner seeking extension of such benefit of grant-in-aid @ 1/3rd w.e.f. 01.06.1988 approached this Court in OJC No.4666 of 1996. This Court vide order dtd.26.07.1999, while disposing the writ petition directed the Opposite Parties to sanction grant-in-aid @ 1/3rd w.e.f. the completion of five years of his appointment, 2/3rd after Page 2 of 24 // 3 // seven years and full salary cost after nine years of service and to modify the order dtd.10.07.1995 accordingly. 4.1. It is contended that the order passed by this Court in OJC No.4666 of 1996 was challenged by the State before the Hon'ble Apex Court in SLP (Civil) No.1916/2000. But the SLP was dismissed vide order dtd.16.03.2000 under Annexure-4. After such dismissal of the SLP, Petitioner was extended with the benefit of grant-in-aid @ 1/3rd w.e.f. 01.06.1988 vide order dtd.19.02.2000 under Annexure-3. 4.2. It is contended that even though in terms of the Resolution issued by the Government in the then Education and E-Services Department on 06.10.1989, Petitioner became eligible to get the benefit of Senior Scale on completion of eight years of service from the date of his regular appointment and to the Reader Scale on completion of eight years of service in the Senior Scale, but on the face of such resolution issued by the Government and taking into account the approval of the services of the Petitioner w.e.f. 01.06.1988, Senior Scale on completion of eight years of service w.e.f. 01.08.1988 and Reader Scale on completion of eight years of service in the Senior Scale was never extended in favour of the Petitioner. Petitioner only vide Notification dtd.17.12.2008 under Annexure-5 was Page 3 of 24 // 4 // extended with the benefit of Senior Scale w.e.f. 18.04.2001 and to the Reader Scale w.e.f. 18.04.2009. 4.3. It is contended that such benefit of Senior Scale and Reader Scale was extended in favour of the Petitioner w.e.f. 18.04.2001 and 18.04.2009 respectively not in accordance with the stipulation contained in Resolution dtd.06.10.1989 vide Annexure-A/1 to the counter, but taking recourse to the amendment carried out to Section-7(c) of the Orissa Education Act, 1969 so published in the Orissa Gazette Extra Ordinary on 17.03.1998 vide Annexure-B/1. 4.4. It is contended that Sub-Section (4-a) and (4-b) of Section-7(c) of the Orissa Education Act (in short 'Act') was inserted vide Notification issued by the Government in the Orissa Gazette on 17.03.1998. Sub-Section (4-a) and (4-b) of Section-7(c) of the Act reads as follows:-
"(4-a) The grant-in-aid to be borne by the State Government on account of placement of a teacher in an aided educational institution receiving University Grants Commission scales of pay under the Career Advancement Scheme, shall be limited to the extent as may be admissible by computing the period of service rendered by him against an approved post with effect from the date of completion of five years of service against such approved post:
Provided that nothing in this sub-section shall be construed as to effect the seniority or any other conditions of service of such a teacher.
(4-b) Notwithstanding anything contained in any judgment, decree or order of any Court to the contrary, any instructions issued, actions taken or things done on or after the 1st day of January, 1986 in regard to matters provided in sub-section (4-a) shall be deemed to have been validly issued, taken or Page 4 of 24 // 5 // done as if the said sub-section were in force at all material points of time.".
4.5. It is contended that in terms of the amendment carried out to Section-7(C) of the Act by inserting Sub- Section-4(a) and 4(b), Petitioner was extended with the benefit of Senior Scale w.e.f. 18.04.2001 and to the Reader Scale w.e.f. 18.04.2009. But similar restriction imposed under Sub-Section-4(a) and 4(b) of Section-7(c) of the Act when was relaxed in respect of Lecturers sponsored by Service Selection Board vide office order dtd.18.07.2013 so issued by the Government-Opposite Party No.1 under Annexure-6, Petitioner claiming similar extension of benefit moved the Government-Opposite Party No.1 by making a detailed representation on 09.07.2016 under Annexure-7. 4.6. It is contended that without proper appreciation of the claim of the Petitioner vis-à-vis the relaxation extended to similarly situated Lecturers sponsored by Service Selection Board under Annexure-6, claim of the Petitioner was rejected vide the impugned communication dtd.29.07.2016 under Annexure-1.
4.7. Learned Senior Counsel appearing for the Petitioner contended that taking into account the date of approval of the services of the Petitioner as 01.06.1988, which was extended in terms of the order passed by this Court in OJC Page 5 of 24 // 6 // No.4666 of 1996, in view of the provisions contained in Resolution dtd.06.10.1989 under Annexure-A/1, Petitioner became eligible to get the benefit of Senior Scale on completion of eight years of service i.e. w.e.f. 01.06.1996 and in the Reader Scale on completion of another eight years from 01.06.1996 i.e. 01.06.2004. But placing reliance on the amendment carried out to Section-7(c) of the Act with insertion Sub-Section-4(a) and 4(b), by adding another five years of service, Petitioner was extended with the benefit of Senior Scale w.e.f. 18.04.2001 and to the Reader Scale w.e.f. 18.04.2009. Even though, Sub-Section- 4(a) and 4(b) was also applicable to Lecturers sponsored by Service Selection Board and appointed against approved post in different Non-Govt. Aided Colleges of the State, but the said stipulation contained under Sub-Section -4(a) and 4(b) to Section-7(c) of the Act was relaxed in favour of such Lecturers appointed against the approved post sponsored by Service Selection Board vide office order dtd. 18.7.2013 under Annexure - C. 4.8. It is contended that there is no difference in between the Lecturers appointed by the Governing Body and Lecturers appointed through Service Selection Board and the stipulation contained under Sub-Section -4(a) and 4(b) of Section-7(c) of the Act was made applicable to all Page 6 of 24 // 7 // Lecturers appointed against the approved post in different Non-Govt. Aided Colleges of the State. But while extending the relaxation of 5 years of service vide office order dtd.18.07.2013 under Annexure-6, similar benefit with relaxation of the provision should not have been rejected vide the impugned order dtd.29.07.2016 under Annexure-1. It is accordingly contended that the rejection available at Annexure-1 is not sustainable in the eye of law and it requires interference of this Court.
4.9. In support of his aforesaid submission, learned Senior Counsel appearing for the Petitioner relied on the decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava & Others.
Hon'ble Apex Court in Para- 22 of the said 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:
(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 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. Page 7 of 24
// 8 // (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 does not suffer from either laches and delays or acquiescence.
4.10. With regard to non-applicability of the provisions contained under Sub-Section -4(a) and 4(b) of Section-7(c) of the Act, which was brought into effect w.e.f. 17.03.1998 vide Annexure-B/1, learned Senior Counsel appearing for the Petitioner contended that since prior to coming into force of such provision, Petitioner was already eligible to get the benefit of Senior Scale on completion of eight years of service in terms of the Resolution issued by the Government on 06.10.1989 under Annexure-A/1, such a provision is also not applicable to the claim of the Petitioner Page 8 of 24 // 9 // in view of the decision of the Hon'ble Apex Court in the case of Sree Sankaracharya University of Sanskrit & Others vs. Dr. Manu & Another, reported in 2023 LiveLaw (SC)
468. 4.11. Hon'ble Apex Court in Para-7 and 9.2 of the said judgment has held as follows:-
"7. This matter calls for a determination as to whether the 29th March, 2001 was a clarification of Clauses 6.16 to 6.19 of the Government Order dated 21st December, 1999, or whether, it amended or modified the same. If the subsequent Government Order is declared to be in the nature of a clarification of the earlier order, it may be made applicable retrospectively. Conversely, if the subsequent Government Order is held to be a modification/amendment of the earlier order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made.
9.2.From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively".
5. Per contra Mr. Sangram Jena, learned Addl. Government Advocate made his submission basing on the stand taken in the counter affidavit. While not disputing the appointment of the Petitioner as against the 1st post of Page 9 of 24 // 10 // Lecturer in Physics against a sanctioned post on 01.06.1988 and the approval of his services w.e.f. 01.06.1988 in terms of the order passed by this Court in OJC No.4666 of 1996, learned State Counsel contended that even though services of the Petitioner was approved w.e.f. 01.06.1988 and he was otherwise eligible to get the benefit of Senior Scale on completion of eight years of service and to the Reader Scale on completion of another eight years of service in terms of the Resolution dtd.06.10.1989 under Annexure-A/1 and subsequent Resolution issued on 19.03.1990, but such benefit due to the Petitioner and similarly situated Lecturers appointed by the Governing Body in Non-Govt. Aided Educational Institution was nullified with insertion of Sub-Section-4(a) and 4(b) to Section-7(c) of the Act.
5.1. It is contended that in view of the provisions contained under Sub-Section -4(a) and 4(b) to Section-7(c) of the Act, period of eight years so provided in the Resolution dtd.06.10.1989 as well as on 19.03.1990 is to be counted by adding five years of service to the initial date of appointment of an employee. Since the date of appointment of the Petitioner is 01.06.1988, by adding five years to the same which falls due on 01.06.1993, Petitioner was extended with the benefit of Senior Scale on completion Page 10 of 24 // 11 // of eight years from 01.06.1993 i.e. 18.04.2001 vide order under Annexure-5 and to the Reader Scale after another eight years i.e. w.e.f. 18.04.2009.
5.2. It is accordingly contended that since by the time Petitioner was so extended with the benefit of Senior Scale and Reader Scale, Sub-Section-4(a) and 4(b) of Section-7(c) of the Act was governing the field having been notified in the Orissa Gazette on 17.03.1998 under Annexure-B/1 to the counter, no illegality or irregularity has been committed by the Opposite Parties in extending such benefit in favour of the Petitioner w.e.f. 18.04.2001 and 18.04.2009 respectively.
5.3. It is also contended that Petitioner was extended with the benefit of Senior Scale w.e.f 18.4.2001 vide order dtd. 17.12.2008 under Annexure-5 and to the Reader Scale w.e.f.18.04.2009 vide order dtd.18.04.2009. Petitioner at no point of time challenged the said extension of the benefit w.e.f. 18.04.2001 and 18.04.2009 respectively and he accepted the benefit without raising any such objection. After around eight years, for the first time Petitioner raised the claim to get the benefit on completioin of eight years of his service in the Senior Scale and after another eight years of service to the Reader Scale, by making the representation on 09.07.2016 under Annexure-7. Since the Page 11 of 24 // 12 // claim made by the Petitioner under Annexure-7 is a belated claim as well as a stale claim having been made after eight years of accepting the benefit, same was rightly rejected by the Government-Opposite Party No.1 under Annexure-1 and it requires no interference.
7. Learned Addl. Government Advocate for the State in support of the aforesaid submissions relied on the decisions of the Hon'ble Apex Court as well as this Court in the case of (1) Union of India vs. Chaman Rana & Others reported in 2018(5) SCC 798, (2) Shiba Shankar Mohapatra & Another vs. State of Orissa & Others reported in 2010 (12) SCC-471, (3) C. Jacob vs. Director of Geology & Mines reported in 2008 (10) SCC-115, (4) Union of India & Others vs. M.K. Sarkar reported in 2010(2) SCC-59 & (5) State of Odisha vs. Susama Pattnaik & Another in W.P.(C) No.8281 of 2018, disposed of on 24.01.2023.
7.1. In the case of Chaman Rana, Hon'ble Apex Court in Para-8 and 16 has held as follows:-
"8. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt (supra) be considered, the cause of action based thereon accrued on 12.05.2008. There has to be a difference between a cause of action and what isperceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, Page 12 of 24 // 13 // or within a reasonable time thereafter as third party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in theirbelief of the protection available to them in service with regardto seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the government that would follow by such orders of promotion.
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16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the government. The order of the High Court is therefore held to be unsustainable and is set aside. 7.2. In the case of Shiba Shankar Mohapatra, Hon'ble Apex Court in Para-30 has held as follows:-
"30.Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation"
7.3. In the case of C. Jacob, Hon'ble Apex Court in Para-9 to 11 has held as follows:-
"9.The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `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, Page 13 of 24 // 14 // but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of 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.
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, 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 department or to inform the appropriate department. Representations with incomplete 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.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount 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".
7.4. In the case of M.K. Sarkar, Hon'ble Apex Court in Para-14 to 16 has held as follows:-
"14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115 :
"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `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 is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such Page 14 of 24 // 15 // 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."
15.When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect".
7.5. In the case of Susama Pattnaik, this Court in Para- 3.5, 3.6. and 7 has held as follows:-
"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 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:-
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `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 Page 15 of 24 // 16 // 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 is made for quashing the rejection of 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.
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, 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 department or to inform the appropriate department. Representations with incomplete 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.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount 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.
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.
13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be 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 employee at fault and result in drain of public 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.Page 16 of 24
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14. We are constrained to refer to the several facets of the issue only to emphasize the need for 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".
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.
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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.
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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 Page 17 of 24 // 18 // 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".
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 orders, this Court dismisses the matter filed by the Opposite Party No.1 in O.A No.1409 of 2015". 7.1. Placing reliance on the aforesaid decisions and the provisions contained under Sub-Section -4(a) and 4(b) to Section-7(c) of the Act, learned State Counsel contended that the claim of the Petitioner to get the benefit of Senior Scale w.e.f. 01.06.1996 and Reader Scale w.e.f. 01.06.2004 has been rightly rejected vide order dtd.29.07.2016 under Annexure-1 and it requires no interference.
8. To the submissions made by learned State Counsel, learned Senior Counsel for the Petitioner contended that even though in terms of the Resolution dtd.06.10.1989 and subsequent Resolution issued on 19.03.1990, Petitioner became eligible to get the benefit of Senior Scale on completion of eight years of service from 01.06.1988 and to the Reader Scale on further completion of eight years i.e. w.e.f. 01.06.2004 but in view of the amended provisions inserted under Sub-Section -4(a) and 4(b) of Section-7(c) of Page 18 of 24 // 19 // the Act, Petitioner was extended with the benefit of Senior Scale w.e.f. 18.04.2001 vide order under Annexure-5 and to the Reader Scale w.e.f. 18.04.2009. Petitioner at the initial stage did not dispute such grant of benefit w.e.f. 18.04.2001 and 18.04.2009 in view of the provisions inserted under Sub-Section -4(a) and 4(b) of Section-7(c) of the Act. But without amending the provisions so inserted under Sub-Section -4(a) and 4(b) to Section-7(c) of the Act, when the stipulation contained under Sub-Section-4(a) and 4(b) was relaxed in respect of the Lecturers appointed on being sponsored by the State Selection Board vide Office Order dtd.18.07.2013 under Annexure-6, Petitioner being similarly situated and having been deprived from getting similar relaxation as well as the benefit moved the application under Annexure-7 on 09.07.2016. 8.1. Learned Senior Counsel contended that because of the relaxation extended in favour of similarly situated Lecturers appointed in Non-Govt. Aided Colleges, sponsored by State Selection Board vide Office Order dtd.18.07.2013 under Annexure-6. Petitioner since was deprived to get the similar benefit, he made the prayer to extend similar benefit by making the representation under Annexure-7.
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// 20 // 8.2. It is accordingly contended that in view of the relaxation extended in favour of the Lecturers appointed on being sponsored by the State Selection Board on 18.07.2013, Petitioner got the cause of action to ventilate his claim by making the representation under Annexure-7. 8.3. It is accordingly contended that the claim of the Petitioner as contented by the learned State Counsel is neither a belated claim nor a stale claim. But in view of the decision of the Hon'ble Apex Court in the case of Arvind Kumar Srivastava, (as cited supra) Petitioner being similarly situated and having been appointed against approved post in non-Govt. Aided Colleges, he is eligible and entitled to get the relaxation as has been extended in favour of Lecturers appointed on being sponsored by the State Selection Board so extended vide Office order dtd.18.07.2023 under Annexure-6.
8.4. It is accordingly contended the stand taken by the learned State Counsel is not acceptable, as the Petitioner after issuance of Annexure-6 on 18.07.2013 and on coming across the same raised the claim to get similar benefit on 09.07.2016 under Annexure-7. But prayer of the Petitioner Page 20 of 24 // 21 // has been illegally rejected vide order dt.29.7.2016 under Annexure-1.
9. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed that Petitioner was appointed as against the 1st post of Lecturer in Physics vide order of appointment issued on 01.06.1988. Even though services of the Petitioner was initially approved by making him eligible to get the benefit of grant-in-aid @ 1/3rd w.e.f. 01.06.1989 vide order dtd.10.07.1995 under Annexure-2, but in terms of the order passed by this Court in OJC No.4666 of 1996, Petitioner was extended with the benefit of grant-in-aid @ 1/3rd w.e.f. 01.06.1988 vide order dtd.09.02.2000 under Annexure-3.
9.1. As provided in the Resolution dtd.06.10.1989 under Annexure-A/1 and subsequent Resolution issued by the Government on 19.03.1990, Petitioner became eligible to get the benefit of Senior Scale on completion of eight years of service from 01.06.1988 i.e. w.e.f. 01.06.1996 and to the Reader Scale on further completion of eight years from 01.06.1996 i.e. 01.06.2004. But as found from the record in view of the insertion of Sub-Section-4(a) and 4(b) to Section-7(c) of the Act, Petitioner was extended with the benefit of Senior Scale w.e.f. 18.04.2001 i.e. by adding five Page 21 of 24 // 22 // years from the initial date of appointment over and above the 8 years stipulation.
9.2. As found from the provisions contained under Sub- Section -4(a) and 4(b) of Section-7(c) of the Act, such a stipulation was inserted in respect of Teachers appointed in Non-Govt. Aided Educational Institutions receiving University Grants Commission scale of pay under the Career Advancement Scheme. But as found from the Office order dtd.18.07.2013 under Annexure-6, the stipulation contained under Sub-Section -4(a) to Section-7(c) of the Act was relaxed in respect of Lecturers appointed in Aided Educational Institutions on being sponsored by the State Selection Board. But the fact remains that Lecturers appointed by the Governing Body and Lecturers appointed on being sponsored by the State Selection Board are all appointed as Lecturers in Non-Govt. Aided Colleges against approved posts.
9.3. Even though Lecturers appointed in Non-Govt. Aided Colleges were eligible to get the benefit of Senior scale on completion of eight years of service and to the Reader Scale on further completion of eight years of service in terms of the Resolution issued by the Government on 06.10.1989 as well as 19.03.1990, but in view of the provisions brought out under Sub-Section -4(a) and 4(b) to Section-7(c) of the Page 22 of 24 // 23 // Act, all such Lecturers appointed in Non-Govt. Aided Colleges against approved posts were held eligible to get the benefit of Senior Scale and Reader Scale with addition of another five years of service from the date of their initial appointment.
9.4. Since such restriction imposed with insertion of Sub- Section -4(a) and 4(b) to Section-7(c) of the Act was relaxed in respect of Lectures appointed in Non-Govt. Aided Educational Institutions sponsored by State Selection Board without carrying out any amendment to the provisions, vide Office order dtd.18.07.2013 under Annexure-6, placing reliance on the decision in the case of Arvind Kumar Srivastava, this Court is of the view that Petitioner is eligible and entitled to get similar benefit of relaxation.
9.5. In view of the aforesaid analysis, this Court is inclined to quash Office order dtd.29.07.2016 so passed by the Government-Opposite Party No.1 under Annexure-1. While quashing the same, this Court directs the Opposite Party Nos.1 and 2 to consider the claim of the Petitioner to get Senior Scale and Reader Scale of pay by relaxing the stipulation as contained in order dtd.18.07.2013 under Annexure-6 and take a fresh decision within a period of three (3) months from the date of receipt of this order. Page 23 of 24
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10. With the aforesaid observations and directions, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 6th March, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Mar-2024 13:02:57 Page 24 of 24