Orissa High Court

Satyashri Mohapatra vs State Of Odisha And Others on 7 December, 2022

                     ORISSA HIGH COURT: CUTTACK

                            W.P.(C) No.24000 of 2019

      In the matter of an application under Articles 226 and 227 of
      the Constitution of India
                                    ----

      Satyashri Mohapatra                .....      Petitioner

                                       -Versus-

      State of Odisha and others          .....        Opp. Parties


           For Petitioner        : Mr. R.N. Parija, Adv.

           For Opp. Parties      : Mr. S.K. Samal, A.G.A.


      P R E S E N T:

THE HONOURABLE MR. JUSTICE SANJAY KUMAR MISHRA

Date of Hearing : 15.09.2022 and Judgment: 07.12.2022

S.K. Mishra, J. The Petitioner has filed the Writ Petition, being

aggrieved by Order dated 26.11.2019, as at Annexure-1, vide

which his representation to grant and release all the service and

financial benefits at par with his counter parts, in terms of the

Notification dated 14.05.2019, as at Annexure-8, was rejected

by the Opposite Party No.1.

2. Accordingly, a prayer has been made to set aside the said

Order dated 26.11.2019, and to direct the Opposite Parties to

grant and release all the service as well as financial benefits to the Petitioner, as was being granted in favour of the

counterparts of the Petitioner, in terms of the Notification dated

14.05.2019.

3. This case has checked history. The case of the Petitioner is

that way back on 28.10.1994, he was allowed to work as

NMR/DLR Engineer under the Water Resources Department

with due approval of the Department after following due

procedure of law. After his appointment as such, he was

discharging his duties at par with Assistant Engineers to the

utmost satisfaction of the Authorities. There was no adverse

remark communicated to him during his entire service career

and he used to draw a consolidated payment of Rs.2,000/-,

which was at par with scale of pay of the Assistant Engineers

during the year, 1994, which was also increased subsequently

at par with the revision of pay of Assistant Engineers.

The Government of Odisha, Water Resources Department,

vide letter dated 27.02.2004, appointed 10 nos. of NMR/DLR

Graduate Engineers, including the Petitioner, against the

sanctioned post of Assistant Engineer by following due

procedure of law.

While the Petitioner and similarly placed 9 others were

continuing as such, some of the Junior Engineers, working

under the Department of Water Resources, approached the

Tribunal challenging the appointment of the Petitioner and 9

others, which was registered as O.A. No.504/2004. Finally, the

Tribunal disposed of the said O.A. by setting aside the Order

dated 27.02.2004 with an observation/direction that it would

not be a bar as to the continuance of the affected persons as

DLR Engineers for discharging some technical duties without

the designation or responsibility of Sub-Divisional Officers.

4. Challenging the said judgment passed by the Tribunal, the

Petitioner, along with similarly placed 9 others, preferred Writ

Petition No.1748/2007 before this Court. While issuing notice,

as an interim, it was ordered that continuance of the Writ

Petitioners in the posts held by them will be abided by the result

of the Writ Petition and the said Writ Petition is still pending for

consideration before this Court.

5. It is further case of the Petitioner that during pendency of

W.P.(C) No.1748/2007, the Opposite Parties decided that those

persons, who are continuing as NMR/DLR Graduate Engineers

like the persons, who were engaged prior to 12.04.1993, would

be brought over to work-charged establishment as Assistant

Engineer (work-charged) with pay band of Rs.9300-34800 and

Grade pay of Rs.4600/- and in terms of the said decision, vide

letter dated 28.05.2009, a request was made to the Opposite

Party No.1 to ensure that the Engineers, who are working as

NMR/DLR, to be brought over to work-charged establishment.

Pursuant to such request, the Finance Department gave

concurrence to such proposal. After such concurrence, one

Sarat Chandra Gouda, who was working as NMR Graduate

Engineer, was brought over to work-charged establishment.

However, the case of the Petitioners in W.P.(C) No.1748/2007

was not taken into consideration.

6. Being aggrieved by such discriminatory act of the Opposite

Parties, the Petitioner, along with other Writ Petitioners, in

W.P.(C) No.1748/2007, filed Misc. Case No.9411/2012, which

was disposed of vide Order dated 17.07.2012, with the following

observations:

Misc. Case No.9411 of 2012 " Heard learned counsel for the parties. Pendency of the writ application will not be a bar for consideration of the case of the petitioners for the post of Work Charged Assistant Engineers.

The Misc. Case is accordingly disposed of."

7. After the said Order was passed by this Court in Misc.

Case No.9411/2012, out of 10 writ Petitioners, 9 NMR/DLR

Engineers were brought over to the work-charged

establishment, vide Notification dated 08.02.2013 and the

Petitioner was singled out and he was allowed to continue as

contractual Assistant Engineer. Challenging such

discriminatory act of the Authority, the Petitioner was

constrained to approach the Tribunal in O.A. No.2415 (C)/2015,

with a prayer to direct the Opposite Parties to regularize his

service as Assistant Engineer (Mech.)/Assistant Executive

Engineer (Mech.) with an alternative prayer to extend the relief,

as was being granted to similarly placed 9 contractual

Engineers. The Tribunal, vide judgment dated 03.03.2017, was

pleased to allow the said O.A. Pursuant to the judgment passed

in O.A. No.2415(C)/2015, vide Notification dated 09.10.2017,

the Petitioner was brought over to work-charged establishment

w.e.f. 08.02.2013 i.e. the date on which the similarly placed 9

counterparts employees were brought over to work-charged

establishment.

8. It is further case of the Petitioner that, vide Resolution

dated 21.03.2013 of the Department of Water Resources, there

was a restructuring of cadre of Orissa Engineering Services and

Diploma Engineering Service, where there is a mention that the

entry level post of the cadre of Orissa Engineering Services shall

be at the level of Assistant Executive Engineer in Junior Class-I

Branch in the cadre of pay in PB-3, Rs.15600-39100/- with GP

Rs.5400/-.

9. After such Resolution was passed by the Department of

Water Resources, and during pendency of O.A.

No.2415(C)/2015, the Petitioner and similarly placed 9

employees preferred O.A. No.1036(C)/2016 and O.A.

No.1089(C)/2016 before the Tribunal praying therein to allow

them to be posted in the work-charged establishment as

Assistant Executive Engineer with above mentioned scale of pay

w.e.f. 21.03.2013. The said O.As. were disposed of vide a

common judgment dated 16.05.2018 directing the Opposite

Parties to treat the Applicants as work-charged Assistant

Executive Engineer against the post, which was upgraded and

to give them all the service and financial benefits from the date

the said posts were upgraded.

10. In pursuance of the said judgment of the Tribunal, the

Opposite Parties, vide Notification dated 14.05.2019, granted all

such service and financial benefits to the other 9 similarly

situated persons w.e.f. 21.03.2013, on which date the post of

"Assistant Engineer" was upgraded as "Assistant Executive

Engineer".

11. So far as the Petitioner is concerned, as per the

Notification dated 09.10.2017, he was brought over to work-

charged establishment w.e.f. 08.02.2013 as work-charged

Assistant Engineer, from which date the other similarly situated

9 employees were brought over to work-charged establishment.

Though there was no embargo on the part of the Opposite

Parties to allow the same benefit to the Petitioner, as was being

given to other 9 employees as per Notification dated 14.05.2019,

on being debarred from said benefit, the Petitioner gave a

representation on 15.05.2019 to the Authority concerned

ventilating his grievances. Since the Authority sat tight over the

matter and did not take any decision on the said representation,

he was constrained to file O.A. No.1160(C)/2019 before the

Tribunal, which was disposed of on 05.07.2019, directing the

Opposite Parties to consider and dispose of the representation of

the Petitioner within a stipulated time. On being so directed, the

Authority concerned rejected the representation of the

Petitioner, vide Order dated 26.11.2019, as at Annexure-1,

which is impugned in the present Writ Petition.

12. Though a detailed Counter Affidavit has been filed by the

State-Opposite Parties, the sum and substance of the said

Counter Affidavit is that the Petitioner was engaged as NMR

Graduate Engineer (Mech.) after 12.04.1993 i.e. the date with

effect from which instruction was issued vide letter dated

05.06.1993 of the Department of Water Resources (previously

named as Irrigation Department) imposing ban on recruitment

of work-charged/NMR/DLR employees. Thereafter, the

Petitioner along with others were appointed on contract basis

against regular sanctioned posts of Assistant Engineer, vide

Office Order dated 27.02.2004 of the Department of Water

Resources and continued as such on renewal basis every year.

Subsequently, in obedience to the Order dated 03.03.2017 of

the Tribunal in O.A. No.2415(C)/2015, the Petitioner was

brought over to work-charged establishment w.e.f. 08.02.2013

as work-charged Assistant Engineer in the scale of pay in PB-2,

Rs.9300-34800/, GP Rs.4600/- with usual D.A. and other

allowances admissible from time to time and posted as

Estimator in the O/o the Executive Engineer, Stores & Mech.

Division, Bhubaneswar, against the existing vacancy of

Assistant Executive Engineer (Mech.), vide Notification dated

09.10.2017 of the Department of Water Resources. On the other

hand, his counterparts were upgraded as work-charged

Assistant Executive Engineer in terms of the common Order

dated 16.05.2018 passed by the Tribunal, which was specific to

them only. The Petitioner is neither a similarly placed person

nor party to O.A. No.1036(C)/2016 for getting similar benefits,

as was being extended to the Applicants in O.A. No.1036(C)/

2016. Besides, a stand has been taken in the Counter Affidavit

that if the name of the Petitioner had been included in the said

common Order dated 16.05.2018, then his post could have been

upgraded as work-charged Assistant Executive Engineer along

with his counterparts.

13. It is further case of the State-Opposite Parties that the

Petitioner was brought over to work-charged establishment as

work-charged Assistant Engineer (Mech.) in compliance of the

Order of the Tribunal dated 03.03.2017 and he was posted as

Estimator in the O/o the Executive Engineer, Mech. Division,

Bhubaneswar, which was lying vacant at that time in the rank

of AEE (Mech.) consequent upon upgradation from the post of

AE (Mech.) under restructuring of OES Cadre. The posting of

the Petitioner against the post of AEE (Mech.) was just a mere

adjustment/arrangement for compliance of the Tribunal's Order

dated 03.03.2017, passed in O.A. No.2415(C)/2015.

14. In response to the said Counter Affidavit filed by the State-

Opposite Parties, the Petitioner has filed a Rejoinder Affidavit

stating therein that his case, so also case of his 9 counterparts

are on the same footing and the judgment passed in O.A.

No.1036(C)/2016 and O.A. No.1089(C)/2016 cannot be treated

as a judgment in personam, else it will amount to

discriminatory in nature. It has further been stated in the

Rejoinder Affidavit that the appointment of the Petitioner as

NMR Graduate Engineer (Mech.) after 12.04.1993 is not correct

as the Government, vide Notification dated 05.06.1993, gave an

exception that where it is considered necessary, such

recruitment shall be made with prior approval of the

Government and the appointment of the Petitioner has been

done with approval of the Government and the Tribunal, while

passing the judgment vide Annexure-5, has taken into

consideration such aspect in detail dealing with the Govt.

Notification dated 05.06.1993 and the appointment Order of the

Petitioner being done after due approval of the State Govt.,

Tribunal having taken note of said Notification dated

05.06.1993, the stand of State-Opp. Parties that the Petitioner's

appointment was after 12.04.1993 is unsustainable as the said

issue has already been adjudicated by the Tribunal and it

cannot be reopened subsequently, being already adjudicated by

the Tribunal in O.A. No.2415(C)/2015, vide judgment dated

03.03.2017.

It has further been contended in the Rejoinder Affidavit

that while complying such judgment under Annexure-5 to the

Writ Petition, the Petitioner was brought over to work-charged

establishment under Annexure-6, w.e.f. 08.02.2013 i.e. the date

on which similarly placed 9 other counterparts were brought

over to work-charged establishment. Therefore, the Petitioner

and his other 9 counterparts cannot be segregated to different

category and there is no justifiable reason to deny the benefit

what has been granted to his counterparts and now the

Opposite Parties cannot take a contrary stand denying claim of

the Petitioner as pursuant to Annexure-6, the State

Government, vide letter dated 04.12.2017 (Annexure-11), which

is addressed to the Chief Engineer (Mech.), O/o the EIC, WR,

Odisha, Bhubaneswar, relating to drawal of pay and allowances

payable to the Petitioner, clearly demonstrates that since the

Petitioner has been absorbed against the existing vacancy of

regular sanctioned post of Assistant Executive Engineer (Mech.),

his pay and allowances will be drawn against the regular post of

Assistant Executive Engineer (Mech.) as usual and his

conditions of service will be regulated as per the Odisha Work-

charged (Appointment and conditions of Service) Instructions,

1974. It is also contended in the Rejoinder Affidavit that 9

Graduate Engineers do not belong to the Cadre of Orissa

Engineering Service and those were very much continuing in the

work-charged establishment, having designated as Assistant

Executive Engineer and pay scale attached to the said post is

made available to them, whereas the same has been denied to

the Petitioner illegally on the ground that judgment under

Annexure-7 cannot be extended to the Petitioner being

judgment in personam.

Further, the stand of the Opposite Parties that the case is

subjudice before this Court is also misleading as all the 10

Graduate Engineers, including the Petitioner, are the Petitioners

in the said Writ Petition and after the Order under Annexure-3

to the Writ Petition was passed, all the Writ Petitioners,

including present Petitioner, were brought over to the work-

charged establishment w.e.f. 08.02.2013. However, the

Petitioner was discriminated on the sole ground that his

appointment is beyond 12.04.1993, which has already been

adjudicated by the Tribunal in the judgment under Annexure-5

to the Writ Petition, vide which the Tribunal has allowed the

Original Application and the said judgment has already been

compiled with by the State Government.

It is also contended in the Rejoinder Affidavit that

appointment of the Petitioner as Estimator against the existing

vacancy of Assistant Executive Engineer (Mech.) is not by way of

mere adjustment/arrangement for compliance of the Tribunal's

Order. Rather, as per communication under Annexure-11, the

Petitioner was absorbed against existing sanctioned post of

Assistant Executive Engineer (Mech.). The post "Estimator" in

the rank of Assistant Executive Engineer (Mech.) under the

Control of EIC, Water Resources, has been granted after

restructuring of Engineering Cadre, vide Annexure-12 i.e. the

Order dated 27.02.2012 of the Government of Odisha,

Department of Water Resources, regarding creation of posts.

15. Relying on the judgments of the apex Court in State of

Karnataka and others vs. C. Lalitha, reported in 2006 1 SCR

971, Purnendu Mukhopadhyay and others vs. V.K. Kapoor

and another, reported in (2007) 7 Supreme 679 and State of

Uttar Pradesh and others vs. Arvind Kumar Srivastava and

others, reported in 2015 1 SCC 347, learned Counsel for the

Petitioner submitted that the action of the Opposite Parties to

reject the representation of the Petitioner, as at Annexure-1, is

illegal, arbitrary and discriminatory and deserves to be set aside

directing the Opposite Parties to extend the same benefits, as

was being extended to his counterparts, vide Notification dated

14.05.2019, as at Annexure-8.

16. Learned Counsel for the State-Opposite Parties reiterating

the stand taken in the Counter Affidavit, submitted that the

appointment of the Petitioner being after 12.04.1993 and the

judgment under Annexure-7 being a judgment in persona and

not a judgment in rem, the Authority concerned were justified to

reject the representation of the Petitioner to treat him at par

with his counterparts, as is being claimed by the Petitioner.

17. In State of Karnataka (supra) the apex Court in

Paragraph-26 has held as follows:

" 26. 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."

(emphasis supplied)

18. Similarly, in the case of Purnendu Mukhopadhyay (supra),

vide Paragraph-19, the apex Court held as follows:

"19. In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S. Parihar (supra) and Mittanlal (supra) could be applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case like J.S. Parihar (supra) where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where the order of this Court is capable to two interpretations. (See State of Bihar v. Rani Sonabati Kumari7, AIR 1961 SC 221, State of Keral v. Unni8, (2007) (2) SCC 365 and Sneh Enterprises v. Commissioner of Customs9, 2006 (7) SCC 714)."

(emphasis supplied)

19. In case of State of Uttar Pradesh (supra) vide Paragraph-

23, it was held as follows:

"23. 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.

(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."

(emphasis supplied)

20. It is pertinent to mention that a similar stand had been

taken by the Opposite Parties in O.A. No.2415(C) of 2015

preferred by the Petitioner before the Tribunal as to non-

consideration of the case of the Petitioner on the ground that he

was not engaged prior to 12.04.1993, so also letter of the

Government dated 05.06.1993 imposing ban for engagement of

Work-charged/NMR/DLRs and the Tribunal, vide Paragraph-6

of the said judgment dated 03.03.2017, held as follows:

"6. From the contents of the letter it appears that appointment of the applicant was found necessary, for which Govt. approved the appointment of the applicant. The order fully satisfies the requirement of the letter of the Govt. dated 5.6.1993 (Annexure-9). Since the engagement of the applicant was after 12.04.1993 but with due approval of the Govt.; he can not be discriminated from other nine graduate Engineers, who have been brought over to the work charged establishment vide order at Annexure-7 and has to be treated at par with them.

Accordingly, the O.A. is allowed, the respondent authorities are directed to treat the applicant at par with the graduate Engineers, who have been brought over to the work charged establishment as per order vide Annexure-7 and appropriate notification be issued giving him all benefits as has been extended to his counter parts vide order at Annexure-7. However, the said order is subject to the out come of the order of the Hon'ble High Court in W.P.(C) No.1748 of 2007. Action as per the observation be taken within a period of two months from the date of receipt of copy of this Order.

7. With these orders, the O.A. is disposed of."

Admittedly, the said judgment passed by the Tribunal in

O.A. No.2415(C) of 2015 has attained finality, being

implemented by the State-Opposite Parties.

21. Similarly, the Tribunal, vide common judgment dated

16.05.2018, as at Annexure-7, while allowing the said O.As,

held/directed as follows:

"15. Hence, in the result, both the O.As. are allowed. The Respod. No.3 i.e. OPSC is directed not to make recruitment pursuant to its advertisement dt.17.4.2015 so far as the post of Asst. Engineer (re-designated as Asst. Executive Engineer) which 9 nos. of applicants are holding. The applicants be treated as work-charged Asst. Executive Engineer against the post, which was upgraded and they be given all service and financial benefits from the date the post were up- graded. Besides this, the State-respondents are directed to take a policy decision to absorb the applicants in the regular service of Asst. Executive Engineer (Civil).

All these exercise be completed within a period of four months from the date of receipt of a copy this order."

(emphasis supplied)

22. Though a stand has been taken in the Counter Affidavit

that W.P.(C) No.1748/2007 is still pending for consideration

before this Court and the learned Counsel for the Petitioner also

did not controvert the said averments made in the Counter

Affidavit filed by the State-Opposite Parties, this Court made a

query, as to present status of the said Writ Petition in the

Website, and it came to the notice of the Court that the said

Writ Petition has been disposed of on 14.03.2022 with the

following Order:

" Learned counsel for the Petitioners states that in a subsequent development, these very Petitioners approached the Odisha Administrative Tribunal (OAT) with the original applications i.e. O.A. No.1036(C) of 2016 and O.A. NO.1089(C) of 2016 seeking regularization of their services. An order dated 16th May, 2018 was passed by the OAT, Cuttack allowing the said OAs. It appears that the State Government has not challenged that order and it has attained finality. He further states that a contempt petition has been filed seeking implementation of the said order. The contempt petition is pending.

It may be noted here that by an interim order passed by this Court in the present petition, it had been clarified by this Court that notwithstanding with the present petition the case of the Petitioners for regularization can still be considered. It appears that pursuant to the said interim order, the above developments have taken place.

In view of the above developments, learned counsel for the Petitioners seeks not to press the present petition with liberty to pursue the contempt petition which is stated to be pending.

The writ petition is disposed of with the above liberty."

23. In view of the admitted facts on record, as discussed in

detail in the fore-going paragraphs, so also settled position of

law, it is not open for the Opposite Parties to take a contrary

stand denying the claim made by the Petitioner to treat him at

par with his counterparts, who were applicants in O.A.

No.1089(c) of 2016 and the impugned Order of rejection, as at

Annexure-1, dated 26.11.2019 being illegal, arbitrary and

discriminatory, and contrary to judgment dated 03.03.2017 in

O.A. No.2415(C) of 2015, deserves to be set aside and

accordingly, the same is hereby set aside.

24. The Opposite Parties are directed to release all the service

and financial benefits to the Petitioner, as has already been

granted to the counterparts of the Petitioners under

Annexure-8, within a period of three months from the date of

communication of the certified copy of this order.

25. Accordingly, the Writ Petition stands disposed of. No

Order as to costs.