Jagadish Singh Babu vs State Of Odisha & Another
2021 Latest Caselaw 8413 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                               W.P.(C) No.29322 of 2020

            Jagadish Singh Babu                     ....                      Petitioner
                                                             Mr. D.N. Rath, Advocate

                                            -versus-

            State of Odisha & Another               ....              Opposite Parties
                                                                     Mr. J. Pattanayak,
                                                                   Addl. Govt. Advocate


                             CORAM:
                     JUSTICE BISWANATH RATH
                                        ORDER

11.08.2021 Order No.

09. 1. Heard Mr.J.K. Rath, learned Senior Counsel being assisted by Mr. D.N. Rath, learned counsel for the petitioner and Mr. J. Pattanayak, learned Addl. Govt. Advocate for the State.

2. The writ petition involves the following prayer:

"Under the above circumstance, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the order passed by the opposite party no.1 bearing No.32991 dated 14.10.2020 vide Annexure-7 to the writ application and be further pleased to direct the opposite parties to treat the petitioner at par with the employees of other aided educational institution who were extended with grant-in-aid in accordance with grant-in-aid order, 1994 and accordingly extend all benefits as applicable to the aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, such as Earned Leaves as prescribed under Rule 9 of 1977 Rules, Extra Ordinary leaves as prescribed under Rule 12 of 1977 Rules as well as Study Leaves as prescribed under Rule 12 of 1977 Rules as

// 2 //

well as Study Leaves as prescribed under Rule 13 of 1977 Rules and other benefits as provides under 1977 Rules, Pension Rules, GPF Rules, since the same facilities and benefits were given to the other institutions, which were notified under Section 3(b) of the Orissa Education Act pursuant to the Grant-in-Aid order, 1994.

And for this act of kindness, as in duty bound the petitioner shall ever pray."

3. Factual aspect involving the writ petition remaining institution where the petitioner is serving was granted permission by the Higher Education Department vide communication no.27800 dated 27.5.1995 with effect from the academic session 1994-95. Temporary reorganization to the institution was granted by the Department of Higher Education vide order no.59732, dated 17.12.1997 from the academic session 1994-95. While the matter stood thus the institution also got affiliation from Sambalpur University by its letter dated 10.8.1998 from the academic session 1994-95. Petitioner having requisite qualification has been appointed in the post of Lecturer in History following a selection process through the Governing Body dated 23.12.1996. Being successful in the interview, petitioner was allowed to join the post on 31.12.1996. While the petitioner was so continuing, the Government of Odisha vide notification dated 26.6.2012 in exercise of power under Clause- b of Section 3 of Orissa Education Act, 1969 read with paragraph-7 of Orissa (Non-Govt. Colleges, Junior Colleges or Higher Secondary Schools) Grant-in-Aid Order, 2008 notified the petitioner's college as an aided education institution to receive block grant in terms of Paragraph-16 of the said Grant-in-Aid order. It is consequent upon order no.26863 dated 2.7.2012, the Director, Higher Education appointed the petitioner as Lecturer in History to receive block grant w.e.f. 20.1.2009. Coming into force of statutory rules namely Orissa

// 3 //

(Education Recruitment and Condition of Service of Teachers and Management of Staff of Aided Education Institution) Rules, 1974 enacted under Section 27 of the Education Act and the provision therein, petitioner deriving benefit of such provision by the way of representations before the Director, Higher Education for consideration for considering the benefits indicated therein also to the petitioner sought for parity of the benefits provided under different statute and circulars to similarly situated persons in the matter of extra ordinary leave prescribed under rule 12 of 1977 rules, Study Rules prescribed under Rule 13 of 1977 Rules with other benefits as provided under 1977 Rules, Pension Rules, GPF Rules for being extended to the petitioner. Finding no consideration of such representation, petitioner was constrained to move this Court in W.P.(C) No.27541 of 2019.

4. Mr. Rath, learned Senior Counsel taking this Court to the order dated 23.12.2019 in disposal of W.P.(C) No.27541 of 2019 to the direction part of the order involved, contended that the writ petition was disposed of directing the Competent Authority of the Higher Education Department to consider the application of the petitioner pending before it in particular manner. It is next taking this Court to the rejection order at Annexure-7 particularly to the reasoning of rejection order at paragraph-2, Mr. Rath, learned Senior Counsel contended that for the particular direction contained in the disposed of writ petition, it was incumbent upon the Competent Authority to decide the representation pending in the manner prescribed in the disposed of writ petition. Thus taking to the observation in the rejection order, a contention is raised that even though there has been some reasoning in the rejection of the

// 4 //

petitioner's representation but there has been absolutely no consideration of the case of Ritanjali Giri @ Paul Vrs. State of Odisha and others : 2016(I)-ILR-CUT-1162 in the consideration process. So far as ground of rejection therein on the premises that the benefits provided by the School and Mass Education Department vide notification dated 1.8.2019 being taken away by another office order of School and Mass Education Department dated 9.9.2020, Mr. Rath, learned Senior Counsel submitted that for the order involved being issued by incompetent authority, the petitioner does not rely on either of the notifications indicated therein, but continues with the claim in the representation for being otherwise possible taking into account the case involving Ritanjali Giri @ Paul (supra) as well as series of developments taken in the meantime in extending similar benefits to the aided institutions also following Ritanjali Giri @ Paul (supra). Thus a contention is also raised that there cannot be discrimination amongst the employees of aided institutions and block grant institutions. Mr. Rath, learned Senior Counsel thus heavily relied on the decision of Ritanjali Giri @ Paul (supra) and sought for interfering in the impugned order and for passing appropriate order thereby. Mr. Rath, learned Senior Counsel for the petitioner also raised a further contention that for the settled position of law in the meantime bringing in all categories of aided institutions receiving aid of different types within the meaning of Section 3(b) of Orissa Education Act through a Full Bench decision vide 2011(I)OLR 524, there is no possibility of depriving the benefit asked for by the Petitioner.

5. Mr.Jyoti Pattanayak, learned Additional Government Advocate in his opposition in an attempt to justify the impugned

// 5 //

order taking this Court to the reasoning involving Annexure-7 firstly contended that for the School and Mass Education notification dated 1.8.2019 being issued by the School and Mass Education without following the requirement of rules of business and obtaining permission of G.A. Department being the Principal Authority involving such matters, upon advice of the Government at appropriate level, the notification dated 1.8.2019 have been withdrawn by another office order of the S. & M.E. dated 9.9.2020. Therefore, an attempt is made to justify the reasoning on the score of rejecting the case of the petitioner on the subsequent notification dated 9.9.2020 coming into picture. However on the other reason assigned in the writ petition vide paragraph-2 by the Commissioner- cum-Secretary to Higher Education Department, Mr.Pattanayak learned Addl. Govt. Advocate also made an attempt that General Administration Department being the Principal Department under the rules of business is required to take decision in such matters with the aid of Finance Department, admittedly has not brought out any notification extending the benefits that has been granted to the employees in the block grant institution to fully aided institutions. Mr. Pattanayak made an attempt to justify the reasoning in the impugned order. At the same time, Mr. Pattanayak taking this Court to the recording in the impugned order in first paragraph and the quotation of the judgment in the first paragraph made an attempt to justify the impugned order being passed taking into consideration ass aspect involved therein requires no interference. Mr.Pattanayak also made an attempt to justify non-applicability of decision in the case of Ritanjali Giri @ Paul (supra) on the premises that there is

// 6 //

no principle decided therein and it is a judgment in personam, thus has no application beyond the particular case.

6. In the first attempt on the submission and counter submission on applicability of case Ritanjali Giri @ Paul (supra), this Court reading through the judgment finds the Single Bench taking into account several aspects in clear term has come to hold that there cannot be any distinction in between fully aided institution and block grant institution for both come within the definition of Section 3(b) of Orissa Education Act. There is clear admission by the State that Ritanjali Giri @ Paul (supra) case has not only been not challenged further on the other hand direction therein involving an employee in block grant institution has been implemented. This Court here also makes clear the position of law on the aspect of application of principle decided in an individual case to the case of similarly situated persons through State of Uttar Pradesh and Others -Versus- Arvind Kumar Srivastava and Others, (2015) 1 SCC 347 where paragraph-22.1 of the decision reads 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 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

// 7 //

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."

In the case of State of Karnatraka and others -Versus- C Lalitha, (2006) 2 SCC 747, the view of the Hon'ble Apex Court in 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 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."

// 8 //

7. Mr.Rath, learned Senior Counsel for the petitioner while requesting to extend the benefits that has been granted to fully aided institution to the employees in the block grant institution taking the aid of provision of Section 3(b) of Orissa Education Act and also taking support of certain decisions, Mr. Pattanayak, learned AGA however objects and pleads that there has been also contrary view on this subject and requesting this Court for not giving any opinion on this aspect at this stage except leaving it open for consideration of the Commissioner- cum- Secretary taking into account the decision to be taken in support by respective parties vis-à-vis the purport of Section 3(b) of Orissa Education Act. There is however no conflict between the parties on the decision of Full Bench of this Court involving Nityananda Lenka and Ors Vrs. State of Orissa and Ors, 2011 (1) OLR 524.

Since there is no consideration of this aspect in the impugned order, this Court leave it open to the Commission-cum- Secretary, Higher Education Department to take care of the above issue while considering the representation of the petitioner but however providing fullest opportunity to the petitioner and opposite party and/or representative of both the sides. Both the parties are also directed to bring further submission on this count and the decision so relied on by their sides before the Commissioner-cum- Secretary, Higher Education Department, Odisha within 15 days along with copy of order of this Court.

8. Coming to the objection involving impugned order at Annexure-7 as to if it is in terms of the direction in the disposal of W.P.(C) No.27541 of 2019, this Court takes note of the direction

// 9 //

part involving disposal of W.P.(C) No.27541 of 2019 dated 23.12.2019, the direction part reads as follows :

"xx xx xx.

Considering the contentions raised by learned counsel for the parties and after going through the record, this Court is of the considered view that since the benefit of compassionate appointment to the legal heirs of deceased employees of educational institutions receiving block grant has already been extended by the authority, vide circular dated 01.08.2019, therefore, without expressing any opinion on the merits of the case, the matter is remitted back to the authority concerned for consideration with regard to extension of other benefits as claimed in the writ application taking into account the ratio decided in Ritanjali Giri @ Paul (supra) within a period of four months from the date of communication of this order. Needless to mention, if it is found that the petitioner is entitled to get all the benefits, as claimed in the writ application in consonance with the law laid down in Ritanjali Giri @ Paul (supra), the same shall be granted within the time stipulated."

9. For the above, this Court here clearly observes that the impugned order is not in terms of direction in the disposed of writ petition and the representation of the petitioner deserves to be reconsidered. It is at this stage, this Court also likes to consider the import in the decision in Ritanjali Giri @ Paul (supra) and taking into consideration the decision involving Ritanjali Giri @ Paul, this Court in deciding the case involving Ritanjali Giri @ Paul, a Coordinate Bench of this Court in disposal of judgment therein while taking into consideration the definition of aided educational institution in paragraph-7 entering into whole gamut involving the case come to observe as follows :

"8. On bare perusal of the aforesaid provision, it is abundantly clear that private educational institution

// 10 //

which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid is an aided educational institution. The Act does not make any distinction between the full Grant School or Block Grant School. Moreover, the private educational institution which has been notified by the State Government to receive grant-in-aid is also an aided educational institution.

9. The application of the petitioner was rejected by the opposite party no.4 on untenable and unsupportable ground. In view of the above discussion, this Court has no option but to quash the order dated 13.07.2012 passed by the District Education Officer, Balasore, opposite party no.4. The matter is remitted back to the opposite party no.4. The opposite party no.4 is directed to consider the application of the petitioner within a period of three months from the date of production of a certified copy of this order."

10. For the aforesaid view and observation made hereinabove, this Court finds the order at Annexure-7 not being passed in terms of the direction of this Court in W.P.(C) No.27541of 2019 further also not taking into considering the vital aspect as indicated hereinabove inasmuch as there is absolutely no consideration of the effect of decision vide Ritanjali Giri @ Paul (supra), the order at Annexure-7 is quashed and the matter is again remitted back to the Commissioner-cum-Secretary, Higher Education Department, Odisha, to consider the representation of the petitioner and decide the matter afresh taking into consideration the decision likely to be submitted by the rival parties, the decision of Hon'ble Apex Court taken note herein above and to consider further plea of the parties in the said aspect. This Court directs both the parties to file their

// 11 //

additional submissions to strengthen their claim before the Commissioner-cum-Secretary, Higher Education Department only with copy of citations within a period of fifteen days hence. In such event, there shall be reconsideration of the representation of the petitioner involved herein in terms of the direction made hereinabove. Further also in terms of the direction in the disposed of writ petition vide W.P.(C) No.27541 of 2019, giving opportunity of hearing to both the sides and by completing the entire exercise within a period of three months from the date of communication of certified copy of this order.

11. Considering several similar matters also remanded by this Court in today's disposal, the Commissioner-cum-Secretary may consider allowing a group of representatives maximum 3 in number to lead all such cases and make arrangements accordingly.

12. With the observation and direction made hereinabove, the writ petition stands disposed of.

(Biswanath Rath) Judge

SKS/UKS