Orissa High Court
Birendra Kumar Bariha vs State Of Odisha And Ors on 23 August, 2022
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IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18523 of 2022
Birendra Kumar Bariha .... Petitioner
Mr. Pitambar Panda, Adv.
-versus-
State of Odisha and Ors. .... Opposite Parties
Mr. Debasis Mohapatra, SC
(for S & ME Deptt.)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
Order ORDER
No. 23.08.2022
01. 1. This matter is taken up through hybrid arrangement.
2. Heard learned counsel for the parties.
3. In this Writ Petition, the Petitioner seeks a direction
from this Court to the Opposite Parties to regularize his
service from the date of initial joining i.e. from 15.01.1999
instead of from the date of rejoining i.e. from 08.11.2011
and allow all consequential service benefits as extended
by this Court vide order dated 05.03.2020 passed in
W.P.(C) No.10071 of 2018. He also prays for quashment
of the order No.12701 dated 31.12.2020 issued by the
Opposite Party No.3/ District Education Officer, Bargarh
and the Office Order No.6560 dated 28.04.2022 issued by
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the Opposite Party No.2/ Director, Elementary Education,
Odisha, Bhubaneswar.
disburse his differential arrear salary as well as the current monthly salary
in trained graduate scale of pay from the date of attaining
the age of 48 years i.e. from 06.04.2012 on the basis of the
Resolution dated 18.02.2008 issued by the Government of
Orissa, School and Mass Education Department and letter
No.6259 dated 16.04.2010 as well as the letter dated
11.01.2011 issued by the Opposite Party No.2- Director of
Secondary Education, Odisha, Bhubaneswar and taking
into account the judgment passed in the case of
Radharani Samal -vrs.- State of Odisha1.
4. Learned counsel for the Petitioner submits that this
Court has earlier decided the similar issue in the case of
Akshya Kumar Nayak -vrs. State of Orissa and Ors.
vide common judgment dated 04.08.2022 passed in
W.P.(C) No.5480 of 2021 and batch of cases. Hence, he
submits that this Writ Petition may be disposed of in the
light of the judgment passed in the case of Akshya
Kumar Nayak (supra).
5. Learned Standing Counsel for the Department of
School and Mass Education submits that he has no
2017 (I) ILR-CUT-546
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objection, if this matter is disposed of in the light of the
judgment passed in the case of Akshya Kumar Nayak
(supra).
6. On perusal of the records and the judgment passed in
the case of Akshya Kumar Nayak (supra), it appears that
similar issue has already been decided by this Court in
the said judgment which was disposed of on 04.08.2022.
The ordering portion of the said judgment is as follows.
"33. This Court is unable to accept the
submission of learned Standing Counsel for the
Department of School and Mass Education as
the petitioner's entitlement to avail Trained
Graduate Scale of pay flows from the
Government resolution dated 18.02.2008 and
the Petitioner possesses the minimum
qualification as mandated by the said
resolution. It is also submitted that the
petitioner attained 48 years of age as on
11.07.2016, after the clarificatory order of the
State Government dated 06.05.2014 and
therefore, the agitation of claim could not have
been done in the same timeline as the issuance
of the clarificatory order. Hence, it cannot be
said that the claim of the petitioner is hopelessly
barred by limitation and stale.
34.This Court is of the view that the grievance
voiced by the petitioner appears to be well
founded and he would be entitled to re-fixation
of scale of pay. Since, there are statutory rules
occupying the field, the petitioner is entitled to
requisite remedy by relying on such rules.
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Moreover, where a service-related claim is
based on a continuing wrong, relief can be
granted even if there is a long delay in seeking
remedy, with reference to the date on which the
continuing wrong commenced, if such
continuing wrong creates a continuing source
of injury. In the case at hand, the issue was in
relation to refixation of pay and in such
circumstances, relief may be granted in spite of
delay as it does not affect the rights of third
parties.
35. In the service jurisprudence evolved by this
Court from time-to-time, it is postulated that
all persons similarly situated should be treated
similarly and only because one person has
approached the Court would not mean that
persons similarly situated should be treated
differently. Justice demands that a person
should not be allowed to derive any undue
advantage over other employees; 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.
36. In the light of above discussions and guided
by the precedents narrated hereinabove, this
Court hereby allows the present Writ Petition
as well as the connected batch of Writ Petitions.
37. Accordingly, this Writ Petition along with
the connected batch of Writ Petitions are
disposed of. No order as to cost."
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7. In view of the aforesaid common judgment passed in
W.P.(C) No.5480 of 2021 and batch of cases, this Writ
Petition is disposed of being allowed.
8. Urgent certified copy of this order be granted on
proper application.
(Dr. S.K. Panigrahi)
Judge
B.Jhankar
