Prana Krushna Dash vs State Of Odisha And Ors
2022 Latest Caselaw 5299 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                W.P.(C) No.12584 of 2022

   (In the matter of an application under Articles 226 and 227 of
  the Constitution of India, 1950).


  Prana Krushna Dash                        ....             Petitioner
                              -versus-
  State of Odisha and Ors.                  ....      Opposite Parties

  Advocates appeared in the case:
  For Petitioner            :               Mr. Subir Palit, Sr. Adv.
                              -versus-

  For Opposite Parties        :            Mr. Biplaba Mohanty, SC
                                                (for S & ME Deptt.)


              CORAM:
              DR. JUSTICE S.K. PANIGRAHI

                DATE OF HEARING:-16.09.2022
               DATE OF JUDGMENT:-10.10.2022

    Dr. S.K. Panigrahi, J.

1. The Petitioner through this Writ Petition seeks to challenge the

action of the Opposite Parties in not considering his case for

fixation of pay, annual increments, revised scale of pay and

consequential benefits thereof from the year 1997. The Petitioner

further challenges the office order No.9380 / SME, dated 02.05.2022

passed by the Opposite Party No.1 on the grounds of illegality and

arbitrariness.

1 of 14 I. Facts of the Case

2. Shorn of unnecessary details, the brief facts of the case is that in the

year 1993, the Petitioner had applied for the post of

"SikhyaKarmee" under D.I of Schools, Jagatsinghpur. The Opposite

Party without giving appointment to the applicants those who were

applied in the year 1993, a fresh Advertisement for appointment of

Asst. Karmee Teacher was made in 1994. At that point, the

application of the Petitioner was rejected due to over-age. The

Petitioner being aggrieved by such rejection filed an Original

Application before the then Orissa Administrative Tribunal,

Cuttack Bench Cuttack bearing O.A No.2795 (C)/1994. The learned

Tribunal after hearing of the case of the Petitioner vide order dated

26.10.1994 passed the following interim order:

"Heard, pending final decision of the Original application, there may be no fresh appointment of SikhyaKarmees in pursuance to Annexure-1. Petition is disposed of accordingly."

3. However, in the year 1996, the said O.A was disposed of as

infructuous, due to the stand taken by the learned Government

Advocate, S & M.E Department, that the posts of SikhyaKarmee

have already been abolished, and the steps have already been taken

for recruitment of Primary School Teachers. While the matter stood

thus, considering the huge number of vacancies prior to 12.08.1997,

i.e. the date on which Elementary Education Cadre Rule came into

force, selection was held in different district for appointment of

Asst. Teacher. The Petitioner and others applied for the post of

2 of 14 Asst. Teacher, under the D.I of School, Jagatsinghpur. The

Petitioner and others were not allowed to apply on the ground of

being over-aged. Therefore, Petitioner and others being aggrieved

the same, approached before this Court by filing O.J.C.

No.3836/1996. By virtue of the interim order dated 19.09.1996

passed by this Court in the said case, the Petitioner along with

others allowed to appear in the interview which reads as follows:

"Although notice of admission was issued on 17.05.1996 till now no counter has been filed on behalf of the Opposite Parties in view of the averments made in the petition, we direct that opposite parties would permit the petitioners to appear in the interview for appointment to the posts of Primary School Teachers along with other candidates. This order is however subject to and without prejudice to the rights and contentions of the respective parties. We also make it clear that in the event the Writ Application is dismissed, the petitioners shall not claim equity.

The Misc. case is disposed of accordingly."

4. In 1997, the Opposite Parties started making appointments to the

candidates, who were not over-aged. Therefore, the present

Petitioner and others approached this Court vide O.J.C

No.10180/1997, challenging such appointments. This Court after

hearing similar batch of cases of C.T candidates vide common

judgment and order dated 05.12.1997 disposed of the matter by

directing the Petitioner and others to make representation to the

Government, as the power of relaxation of age lies with the

appointing authority. If age relaxation is granted, the Petitioner and

others shall be entitled to be considered for appointment as

Primary School Teacher by the appointing authority and for other

consequential benefits in accordance with law.

5. As per the judgment and order dated 05.12.1997, the Petitioner

made representation to the Government, but the State authorities

did not respond to the Petitioner's representation within the time

stipulated. Thereafter, the Petitioner filed (OCRMC) Original

Criminal Misc. Case No.264/1999. However, as per the Court's

direction in the OCRMC, appointment order of the Petitioner was

handed over to him on 16.02.2000 in Court itself. As per the

engagement order, the Petitioner joined the post of Asst. Teacher on

18.02.2000. Therefore, the condition of service of the Petitioner was

to be regulated not on the basis of Rules which was in force as on

the date of appointment but the Rules which was in force as on the

date of Selection and the first phase of appointment in pursuance to

the said selection.

6. The candidates who were appointed in 2006 as against the

vacancies for the period of 1996-97, approached the learned Odisha

Administrative Tribunal, Bhubaneswar in 2008, challenging the

new pension scheme and praying for benefits from the year 1997.

The learned Tribunal vide order dated 04.02.2013 has been pleased

to allow the Original applications and direct the Opposite Parties

that seniority shall be governed as per their respective positions in

the revised list of merit and accordingly their pay shall notionally

be fixed and granted to them along with usual normal increments

4 of 14 and consequential arrears of salary from the date of their actual

joining of service.

7. Being aggrieved by such an order and judgment of the learned

Tribunal in O.A No.1536/2008, the S & M.E Department,

Government of Odisha approached the High Court by filing Writ

Petition bearing WP(C) No.5820/2014. The High Court after hearing

the parties vide order dated 22.11.2017 has been pleased to confirm

the Tribunal's order and the Writ Petition of the S & M.E.

Department was dismissed.

8. Owing to the fact that the case of the Petitioner was not considered

by the Opposite Parties, he had earlier approached this Court by

way of W.P.(C) No.34795/2020. The said Writ Petition of the

Petitioner was disposed of on 11.01.2021. Despite that obvious

order, the Opposite Party No.1 did not take any action and the

present Petitioner again filed a contempt petition being CONTC

No.4319/2021, disposed of on 11.08.2021.

9. As per undertaking given by the learned counsel for the S & ME

Department, Opposite Party No.1 vide office order No.9380/dated

02.05.2022, filed in Court on 04.05.2022, he has contended that the

case of the Petitioner is not similar to the applicants in O.A

No.1536/2008 and batch. Hence his prayer to grant him all service

and financial benefits such as pay protection, seniority and fixation

of pay with effect from 1997 merits no consideration and hence

rejected. Being aggrieved by the order No.9380/SME, dated

02.05.2022 passed by the Opposite Party No.1, the Petitioner begs to

prefer the present Writ Application.

II. Submission on behalf of the Petitioner

10. Learned counsel of the Petitioner submitted that the Opposite Party

No.1 without going into the fact of the case, came to a conclusion

that the case of the Petitioner is not similar to the Applicants in O.A

No.1536/2008 and batch. In fact, the fact is that the Petitioner is on a

better footing than the O.A Applicants, who have already received

the benefits. He further contended that the Opposite Party No.1 has

forgotten that the appointment of the Petitioner was made after a

judicial interference, in the year 2002, though the selection was held

in the year 1996-97. This is due to irregularity committed by the

State authorities though the Petitioner had appeared against the

recruitment year and vacancies for the period of 1996. However, as

per sleuth of direction of the Court finally after initiation of

Contempt Proceeding, the Petitioner joined in his service in 2000.

11. Learned counsel further submitted that the Petitioner was eligible

and suitable in all respect for selection of Asst. Teacher since the

year 1993, but he was not able to get the appointment for no fault of

his. However, after direction of this Court, the Petitioner joined in

his service only in 2000.

12. The Opposite Party No.1 in his impugned order stated that the

Petitioner has already accepted the orders of this Court as well as

appointment order without any objection and now raising claims

6 of 14 after lapse of about 20 years. In this juncture, it is submitted that

while this Court disposed of the Writ Petition bearing OJC

No.10180/1997 on 05.12.1997 directing that the Petitioner/s shall be

entitled to be considered for appointment as primary school teacher

by the appointing authority and consider extending other

consequential benefits in accordance with law. Though, the said

order was passed in the year 1997, appointment order was issued in

favour of the Petitioner and others in the year 2000. In this

situation, the Opposite Parties cannot claim delay on the part of the

Petitioner. In such direction, the Court directed to give other

consequential benefits. However, the Opposite Parties did not

comply. Though the Petitioner was appointed in 2000, though the

selection was held in 1996-97. However, due to erroneous adoption

of wrong procedure by the State authority, the eligible candidates

like the Petitioner could not get appointment.

13. It was further submitted that 57 candidates who are below the

Petitioner in the merit list have been given the benefit, however, the

Petitioner has been ignored despite being covered by the said

judgment. These candidates are placed from Serial Nos.39 to 95 in

the seniority-cum-merit list. The conduct of the Opposite Parties is

highly discriminatory and as such clear violation of Article14 of the

Constitution of India. Therefore, the Petitioner finding no other

alternative approached this Court by invoking its extra-ordinary

writ jurisdiction for redressal of his grievance.

III. Submission on behalf of the Opposite Party No.5

14. Per Contra, learned counsel for the Opposite Party No.5 has

submitted that the aforesaid Writ Petition is liable to be dismissed

at the threshold, as prior to filing of the aforesaid Writ Petition, the

Petitioner filed a Writ Petition bearing W.P. (C) No.34795 of 2020

with the same prayer, which was disposed of by this Court on

11.01.2022 with the following observations:

"Considering the submissions made by the parties, this Writ Petition stands disposed of with a direction to the O.P.1 to consider the representation at the instance of Petitioner vide Annexure-4 and take a lawful decision in the matter taking into account the grounds stated in this Writ Petition so also the order of the Tribunal vide Annexure-2 being confirmed by the order of the High Court vide Annexure-3. The entire exercise shall be completed within a period of two months from the date of communication of a copy of this order by thepetitioner."

15. He further submitted that in obedience to the order dated

11.01.2021 passed by this Court, the Opposite Party No.1, Principal

Secretary to Government, School and Mass Education Department

considering the representation of the Petitioner vide office order

No.9380/S&ME dated 02.05.2022, rejected the claim of the Petitioner

in accordance with law and communicated the same to the

Petitioner vide Memo No.9381 dated 02.05.2022. The claim of the

Petitioner relates to the year 2000, in which year, he was appointed

as Primary School Teacher pursuance to the interim order passed

by this Court. However, he filed the Writ Petition in the year 2020,

8 of 14 which itself shows and establishes his conduct with regard to the

claim raised after twenty years.

16. He has further submitted that the Petitioner has come forward to

claim parity with those candidates and has raised a claim to

consider him to be the appointee for the year 1997, which cannot be

accepted at this stage and after so many years which otherwise will

unsettle the position already settled. So far as the claim of the

candidates who were parties in the Writ Petition cited by the

Petitioner i.e. W.P. (C) No. 5820 of 2014 is concerned, as they were

initially appointed in the year 2006 and this Court disposed of the

Writ Petition relates to the claim for treating them as appointee of

the year 1997 basically on the ground that in the event they will be

considered as the appointee of the year 2006, they will not be

brought under the pre-amended provision of Odisha Civil Service

(Pension) Rules, 1992. Further, the claim of the parties of that case

being under the judicial scrutiny of this Court can be treated as live

claim whereas the present Petitioner who was never bothered

about his rights and claim and became silent for about twenty years

and all of a sudden he woke up from a deep slumber and filed a

Writ Petition claiming parity with the candidates of that case.

Therefore, the carelessness conduct and latches of the Petitioner

does not deserve to be considered as a genuine one, rather, the Writ

Petition is liable to be dismissed on the ground of delay and

latches, apart from the merit of the same.

17. He further submitted that it is a well-settled principle as

enumerated under Rule-56 of the Odisha Service Code that the

employee will be entitled to receive the regular scale of pay from

the date of his entry into the cadre of the Government service. In

this regard, the learned counsel has submitted that the similar

nature of issue as involved in the present case has been duly

subjected to the judicial scrutiny of the Supreme Court of India,

where the Apex Court of India has categorically held that the date

of entry into the cadre of the Government service has to be counted

for all purposes including that of pension purpose. In view of the

aforesaid factual and legal aspects as discussed in the foregoing

paragraphs, he submitted that the Writ Petition and the grievance

made by the Petitioner being devoid of any merit is liable to be

dismissed.

IV. Court's Reasoning and Analysis

18. It is well-settled that a person cannot be provided with salary and

allowances unless he has been appointed and provided service for

the Government. As far as the concept of payment of backwages is

concerned, one of the salient features of this compensatory

principle is that the employee/workman was otherwise willing to

render services and it is the employer who has prevented him from

doing so and that was the reason why a wrongful termination

brings forth the issue of consideration of payment of backwages

and in the instant case, the Petitioner cannot be said to have had a

10 of 14 pre-existing right. The Supreme Court in catena of judgments have

echoed such sentiments.

19. In the case of K. Raveendra Retna -vs.- The Government Of Tamil

Nadu1, the Madras High Court iterated that:

"The principle 'No Work - No Pay' derives its strength from the basic concept that wages are paid as part of the remuneration for the work performed. When it comes to the question of Government services, the State cannot draw money from the Treasury, without the sanction of the Legislature. That is the reason why the Budget Estimates are prepared and they are presented to the Legislature for its scrutiny, approval and for passing the Bill. Consequently, the Budget Estimates delineate as to how much money is needed to be drawn by the Government towards payment of salary and wages of it's servants. Therefore, without any provision being made, for such payments to be made to a person, who is not appointed to the services of the State, salary and allowances could not have been drawn for nearly five years period antecedent to the date of actual appointment of the Writ Petition er on 24.09.2014. It is not in dispute that the Writ Petition er did not render any service to the State during the period commencing from 07.07.2009 onwards. He started discharging of the functions of a civil post, only after 24.09.2014. Therefore, for having not rendered any work to the State, he is not entitled to be remunerated.

So far the concept of payment of backwages is concerned, one of the salient features of this compensatory principle is that the employee/workman was otherwise willing to render services and it is the employer who has prevented him from doing so and that was the reason why a wrongful termination brings forth the issue of

W.A.(MD)No.984 of 2016 (Madras High Court)

consideration of payment of backwages and in the instant case, there is no pre-existing right, like in the case of serving workman/employee, in the hands of an aspirant for public employment. A notification taken out by the State or its agencies is only an invitation to the best talent available to respond and there is no guarantee that all those who responded would get selected. If any one of the constitutional rights of a candidate is violated in the process of selection carried out, corrective measures are required to be taken and one such measure is by issuing a direction to the concerned to consider the candidature of the wrongfully denied person once again, vis-a-vis, those who are selected or those who are not eligible to be selected. That is how in cases of some of the successful Writ Petition ers, orders of appointment are issued over a period of time, like in the instant case. Since the Writ Petition er/appellant has been appointed only on 24.09.2014, the question of making payment, for an earlier period, than his date of appointment, would not arise and hence, we do not find any merit in this writ appeal and accordingly, the same is dismissed without costs."

20. In addition, law of limitation or delay and laches, does not affect

the rights of parties as per the declaration of law, but bars and

prevents a party from enforcing the said right by taking recourse to

judicial or quasi-judicial proceedings. The law may be in favour of

a party, but the party could be barred from enforcing the said right

or claim because the period of limitation as prescribed, prevents

and bars the party from such enforcement. When the principle of

delay and laches applies, the Court refuses to exercise discretion

and jurisdiction. Behind the law of limitation and the principle of

delay and laches, lies the important and salutary public policy

principle that stale and old issues should not be reopened and

12 of 14 made subject matter of litigation. Issues, which were never agitated

and were allowed to rest cannot be raked up at any point of time.

21. Reference can be made to the decision of the Supreme Court in

Union of India & Ors. Vs. Tarsem Singh2, wherein the Court had

examined the question of limitation and continuous cause of action,

to observe:-

"7. To summarise, normally, a belated service-related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a Writ Petition ) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong.

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. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the

(2008) 8 SCC 648.

consequential relief relating to arrears normally to a period of three years prior to the date of filing of the Writ Petition ."

22. In this regard, it is clear that the prayer of the Petitioner does not

fall under exceptions that could be applied to condone the delay in

filing this Writ Petition.

23. Considering the precedents cited hereinabove, this Court is of the

opinion that the prayer of the Petitioner cannot be allowed. In view

of the above, the instant Writ Petition filed by the Petitioner is

dismissed.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 10th October, 2022/B. Jhankar

14 of 14