Orissa High Court
Prasanta Kumar Mohapatra & Others vs State Of Odisha & Others : Opp.Parties on 28 September, 2021
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
WP(C) NO.23312 OF 2020
With
WP(C) NOS.19067 OF 2021 & 25464 OF 2020
In the matter of Petitions under Articles 226 & 227 of the Constitution of India
In W.P.(C) No.23312/2020
Prasanta Kumar Mohapatra & Others : Petitioners
In W.P.(C) No.19067/2021
P.Anupa Kumar Achary : Petitioner
In W.P.(C) No.25464/2020
Tripati Padhy : Petitioner
-Versus-
State of Odisha & Others : Opp.Parties
For Petitioners : Mr.K.K.Swain, Advocate
(In W.P.(C) No.23312/20)
Mr. B.Routray, Sr.Advocate
(In W.P.(C) No.19067/2021)
Mr.J.K.Rath, Sr. Advocate
(In W.P.(C) No.25464/2020)
For O.Ps. in all Writ Petitions : Mr.S.Parida, Sr.Standing Counsel
Assisted by Mr.D.Mohapatra,
Standing Counsel
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 28.09.2021
1. For the clarity sake and on consent of all the Counsel involved,
W.P.(C) No.23312/2020 is taken up as a leading case. All the Writ
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Petitions appear to be at the instance of number of Petitioners being the
teaching and non-teaching staff of different Educational Institutions
claiming for the benefits under the Orissa Education (Leave of Teachers
and other Members of the Staff of Aided Educational Institutions) Rules,
1977, the Orissa Aided Educational Institutions Employees' Retirement
Benefit Rules, 1981 and the Orissa Aided Education Institutions'
Employees General Provident Fund Rules, 1983 with application of the
Orissa Education (Recruitment and Conditions of Service of Teachers and
Members of the Staff of Aided Educational Institutions) Rules, 1974 (in
short, "the 1974 Rules". Undisputedly, all these Writ Petitions involve
teaching and non-teaching staff of Block Grant Schools under the Grant-
in-Aid Order, 2004. Further undisputedly, the Institutions involve herein
are already in receipt of full Block Grant. For there is a dispute at the
instance of the State Department that there is a clear distinction between
the employees in the Block Grant Institutions and the Aided Institutions,
this Court in deciding the dispute of this nature in the case of Bindusagar
Samantray vrs. State of Odisha & Others (W.P.(C) No.27634 of 2020
disposed of on 13.9.2021) framed therein Issue No.(ii), particularly
touching this core aspect and in answering the core question whether
there is any distinction between the employees (teaching and non-
teaching) in the Aided Schools under the Grant-in-Aid fold, 1994 and the
employees (teaching and non-teaching) under Grant-in-Aid Order, 2004,
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in elaborate discussion running through Paragraphs-25 to 28 therein
taking reliance of the provision at Section 3(b) of the Orissa Education
Act, this Court while confirming the view of the coordinate Bench in the
case of Ritanjali Giri @ Paul vrs. State of Odisha (School &
M.E.Deptt.) & Ors. : 2016 (I) ILR 1162 has clearly hold that there is in
fact no distinction between the employees working in the Aided
Institutions and Block Grant Institutions. Further this Court here also
finds support of the Petitioners' case through the provision of Section
2(d) of the 1981 Rules. Further reading together with Rule-3 therein First
Part, this Court finds support to the claim of the Petitioners through the
above. It be noted here that many Institutions involved are already in
receipt of full grant.
2. It is at this stage, taking this Court to the impugned order involving
W.P.(C) No.23312/2020, as the leading case, Mr.K.K.Swain, learned
counsel for the Petitioners drawing the attention of this Court through the
discussions in Paragraphs-7 of the order under Annexure-15 contended
that the entire endeavor of the District Education Officer involved herein
made in the ultimate outcome on the basis of the Resolution of the
Government dated 17.3.1979. It is at this stage, Mr.K.K.Swain, learned
counsel for the Petitioners taking this Court to the amendment of 1979
Resolution taken place in 1985, vide Annexure-24 to the rejoinder
affidavit demonstrated that the 1985 Resolution has been brought in
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amendment of the 1979 Resolution and taking through both the
Resolutions, Mr.Swain, learned counsel, further contended that the
impugned order having been strictly based on a non-existing Resolution,
there is absolutely non-application of mind by the District Education
Officer involved and as such foundation in the decision is wholly
defection and such order must go.
3. It is at this stage of the matter, this Court finds, through the counter
affidavit filed in response to such allegation in the Writ Petition through
Paragraph-9 at Page-77 of the Brief involving W.P.(C) No.23312/2020,
there is an attempt by the same District Education Officer through the
counter to justify their decision impugned herein, again relying on an
obstinate Resolution. This Court here observes, even after the Petitioners
bringing through their pleading with the decision impugned has been
taken on an unavailable Resolution, it is not known in what application of
mind, the District Education Officer again attempted to justify such
action and basing on reliance on an unavailable Resolution. It is at this
stage of the matter, a statement at Bar is made that the impugned order
involved herein is not only an outcome of reliance of an unavailable
Resolution but in all the cases listed today even though the impugned
orders therein have been passed by the District Education Officers
throughout the State have also followed the same suit. In this situation,
this Court finds, when the teaching and non-teaching staff are able to find
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out appropriate application of Resolution, it is surprise to note that the
District Education Officers in the State being the protector of Law could
not be aware of the change in the Resolution and taking decision referring
to obstinate the Rules. This Court observes, this is a bizarre state of
affairs by all the District Education Officers herein. Even in some cases
the Principal Secretary even followed the same suit.
4. This Court here also finds, taking such decisions the competent
authority is also required to take into account the two relevant decisions
of the Hon'ble apex Court in the case of State of U.P. and others Vrs.
Arvind Kumar Srivastava and others, reported in (2015) 1 SCC 347 and
in the case of State of Karnataka and others Vrs. C. Lalitha, reported in
(2006) 2 SCC 747. In the case of State of U.P. and others Vrs. Arvind
Kumar Srivastava and others, reported in (2015) 1 SCC 347, the Hon'ble
Apex Court in paragraph-22 observed as follows:
"22. The legal principles which emerge from the reading
of the aforesaid judgments, cited both by the appellants as
well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of
employees is given relief by the court, all other identically
situated persons need to be treated alike by extending that
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
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persons did not approach the Court earlier, they are not to be
treated differently.
22.2. However, this principle is subject to well-recognised
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay only because of the reason that
their counterparts who had approached the court earlier in
time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case
of similarly situated persons be extended to them. They
would be treated as fence-sitters and laches and delays,
and/or the acquiescence, would be a valid ground to dismiss
their claim.
22.3. However, this exception may not apply in those cases
where the judgment pronounced by the court was judgment
in rem with intention to give benefit to all similarly situated
persons, whether they approached the court or not. With
such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly
situated persons. Such a situation can occur when the
subject-matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K.C.
Sharma v. Union of India [K.C. Sharma v. Union of India,
(1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other
hand, if the judgment of the court was in personam holding
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."
Similarly in the case of State of Karnataka and others Vrs. C.
Lalitha reported in (2006) 2 SCC 747, paragraph-29 reads as follows:
"29. Service jurisprudence evolved by this Court from
time to time postulates that all persons similarly situated
should be treated similarly. Only because one person has
approached the court that would not mean that persons
similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should
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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."
From the aforesaid decision of Hon'ble Supreme Court and taking
into account several other decisions of Hon'ble apex Court, it appears,
the Hon'ble apex Court has come to observe normal rule is that when a
particular set of employees are given relief by the Court all other
identically situated persons need to be treated alike by extending that
benefit and further not doing so, would be meaning to discriminate and
would be violative of Article 14 of the Constitution of India. It has also
come to further observe that in case of judgment in personam, though it
has no application but on such pronouncement it becomes an obligation
on the part of the authorities to extend the benefit through it to all such
similarly situated persons except the person so approaches shall have to
satisfy that their particular request does not suffer from either latches and
delays or acquiescence.
In deciding the case in State of Karnataka and Others Vrs.
C.Lalitha, reported in (2006) (2) SCC 747, Hon'ble Apex Court has come
to observe that service jurisprudence evolve of this Court from time to
time postulates similar situated employees should be treated similarly.
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Only because one person approached the Court that would not mean
person similarly situated should be treated differently. It is for the above
consistent view of the Hon'ble Apex Court, this Court finds the State
Department has no escape from applying the principle decided in the case
of Ritanjali Giri @ Paul (supra) to all such similarly situated cases.
5. It is at this stage of the matter, Mr.S.Parida, learned Senior
Standing Counsel for the School & Mass Education Department in clear
understanding that the impugned order has been passed based on non-
existing resolution and also decisions of this Court already available by
now, sought for withdrawing the impugned orders involved herein and
seeking permission of this Court to re-visit on the claim of the Petitioners
on application of proper Rules and the judgment already came into
operation in between in similar situation and if permissible.
6. This Court here appreciates the submission of Mr.Parida, learned
Senior Standing Counsel seeking withdrawal of the impugned orders and
to re-visit the issue involved herein.
7. In the circumstances, this Court here observes, the impugned order
involving each Writ Petition be treated to have been recalled and not in
existence but for there being requirement of further decision in the
appropriate application of mind and by appropriate Authority and as this
Court has already come to observe, the District Education Officers
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involved are in habit of passing orders avoiding the prevailing Rules or
Resolutions, the first litigation being already disposed of involving
College matters in W.P.(C) No.29322/2020 disposed of on 11.8.2021 on
same footing, directs the Commissioner-cum-Secretary, School & Mass
Education Department, O.P.1 and the Director of Secondary Education,
O.P.2 to consider the case of the Petitioners involved herein and take
decision by undertaking the complete exercise within a period of two
months from the date of communication of this order. For the discussions
made herein above, this Court also directs O.Ps.1 & 2 while considering
the case of the Petitioners to keep in view the decision of this Court in
Bindusagar Samantray vrs. State of Odisha & Others (W.P.(C)
No.27634 of 2020 disposed of on 13.9.2021), particularly involving Issue
Nos.(ii) & (vi) then also keeping in view the decisions in Kumari Sabitri
Dash vrs. State of Orissa & Ors. : (1993) 1 ATT (HC) 306, Kshitish
Chandra Pati & Ors. Vrs. State of Orissa & Ors. : 78(1994) CLT 967,
Arabinda Panda vrs. State of Orissa & Ors. : 2001(I) OLR 233, Patras
Soreng vrs. State of Orissa & Ors. :1993(II) OLR 272, State of
Karnataka & Others vrs. C.Lalitha : (2006)2 SCC 747 and State of U.P.
& Others vrs. Arvind Kumar Srivastava & Others : (2015)1 SCC 347,
then other decisions taken note herein above and also the provision at
Rule 9(1) of the 1974 Rules further keeping in view the observations of
this Court herein above.
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8. Keeping in view large number of cases filing numbering some
thousands, this Court directs the learned Senior Standing Counsel for the
School & Mass Education Department to highlight the issues that are
required to be attended by the Commissioner-cum-Secretary, School &
Mass Education Department and the Director of Secondary Education
along with copies of judgments indicated herein to the concerned at least
within seven days of this order along with free copy of this order.
9. Learned counsel for the Petitioners are also directed to cooperate
the learned Senior Standing Counsel for the School & Mass Education
Department in formulating the issues/subjects that are required to be
considered under the direction of this Court. Further the Commissioner-
cum-Secretary and Director of the Department are also directed to
attempt for a composite action involving all such issues involved herein
passing a common order.
10. The Writ Petitions are thus disposed of.
...............................
(Biswanath Rath, J.) Orissa High Court, Cuttack. The 28th September, 2021/MKR, A.R.-cum-Sr.Secy.
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