Orissa High Court
Smt. Prativa Swain vs State Of Odisha And Others ...... Opp. ... on 28 June, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 3932 of 2012
An application under Sections 226 and 227 of the Constitution of
India.
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Smt. Prativa Swain ...... Petitioner
-Versus-
State of Odisha and Others ...... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. P. Prusty,
P. Swain & B. Satpathy,
Advocates
For Opp. Parties : Mr. S.N. Patnaik,
Addl. Government Advocate
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28th June, 2024
SASHIKANTA MISHRA, J.
The limited grievance of the petitioner is that her
arrear salary dues for the period from 01.03.1991 to
31.05.1994 have not been paid to her.
2. The petitioner was appointed as an Assistant
Teacher by letter dated 22.02.1985 of the Secretary of the
Managing Committee of Anchal High School
Dinabandhupur and as Head Master vide letter dated
02.04.1985 of the said school under Dhenkanal
Education circle. She joined in the aforesaid posts on
01.03.1985 and 02.04.1985 respectively. The school was a
non-government aided educational institution at the
relevant time. The school was recognized by the
government in the year 1985 and by the Board of
Secondary Education, Orissa in its letter dated
30.12.1986. It was permitted to present candidates
directly in annual HSC examination from 1987 onwards.
It came into the Grant-in-Aid fold with effect from
01.06.1994. The post of the petitioner was approved by
the Inspector of Schools, Dhenkanal circle vide letter
dated 20.09.1995. Grant-in-Aid was allowed as per
notification No.31820 dated 07.10.1994 mentioning the
above entitlement of G.I.A. with effect from 01.06.1994
subject to Section 7(C) of Orissa Education Act. The
petitioner claims to have been compelled by the Inspector
of Schools, Dhenkanal vide letter dated 05.09.1995, not to
claim any arrear dues prior to 01.06.1994. Being an
employee, the petitioner had no other alternative but to
submit such undertaking under pressure. Accordingly,
the G.I.A was released in favour of the petitioner with
effect from 01.06.1994, even though as per law she is
entitled to the same from 01.03.1991, i.e., four years after
presentation of candidates of the school in the final HSC
examination. She further claims that the government has
allowed the employees of several private recognized High
schools to draw GIA prior to 01.06.1994 but deprived her
from such benefit. In the meantime, the petitioner was
transferred to the Orissa Police High School, Cuttack.
Since the representations submitted by her did not yield
any result she approached this Court in OJC No.515 of
2000, which was dismissed for non-prosecution.
Subsequently, having come to know about passing of
orders by this Court in respect of some other persons in
the writ petitions and contempt applications filed by them,
she has approached this Court in the present writ petition
seeking the following relief:-
"Under the circumstances, the petitioner most
humbly prays that the Hon'ble Court be
graciously pleased to issue writ of Mandamus or
any other appropriate writ, direction or order
directing the Opp. parties to consider the case of
the petitioner to release her arrear salary dues
prior to 1.6.1994 i.e., from 1.3.91 to. 31.5.1994 in
the light of aforesaid judgments passed by
Hon'ble Courts and in pursuance with Rule-9 (1)
of the Orissa Education (Recruitment and
Condition of Service of Teachers and Members of
the Staff of Aided Educational Institution) Rules
1974 with effect from 1.03.1991 till 31.05.1994
with consequential service benefits including
periodical increments within a stipulated time.
And for this act of kindness the petitioner as in
duty bound shall ever pray."
3. The stand of the opposite parties as reflected in
their counter and additional counter affidavit are that the
claim of the petitioner is time-barred and cannot be
entertained. Further, the petitioner is guilty of
suppression of material facts inasmuch as she had earlier
approached this Court by filing several writ petitions such
as, OJC No. 8816 of 2001 for approval of her appointment
as Headmaster with effect from 01.06.1994 and to allow
her scale of pay since then; WP(C) No. 2038 of 2003
claiming revised scale of pay with effect from 01.01.1996
and again W.P.(C) No. 18141 of 2010 for the same relief.
Since the earlier writ petition of the petitioner claiming the
self-same relief, i.e., OJC No.515 of 2000, was dismissed
for non-prosecution, the instant writ petition is hit by the
principle of res judicata and doctrine of acquiescence. The
plea of forcing her to sign the undertaking has been taken
for the first time by her and runs contrary to her own
averments made in the earlier writ petition, i.e., W.P.(C)
No.8816 of 2001. The petitioner is nothing but a fence-
sitter and has filed this writ petition only after some other
employees received the benefit consequent upon orders
passed by this Court in different writ petitions.
4. Heard Mr.P. Prusty, learned counsel for the
petitioner and Mr.S.N. Patnaik, learned Addl. Government
Advocate for the State.
5. Mr. P. Prusty would argue that the State cannot
discriminate any employee in the matter of grant of
financial benefits. The petitioner's undertaking not to
claim arrear salary prior to 01.06.1994 cannot be treated
as a bar for staking her legitimate claim as the State being
in a dominant position has obtained the undertaking by
applying pressure. Mr. Prusty further submits that since
identical benefit has been granted to identically situated
employees as per orders passed by this Court on different
writ petitions, the petitioner cannot be denied such
benefits only on the ground of delay and laches. In this
context, he relies on the judgment of this Court in the
case of Supad Haldar and Others v. Small Industries
Corporation,1
6. Mr. S.N. Patnaik, learned AGA, on the other hand,
would argue that the petitioner is guilty of gross delay and
laches inasmuch as her earlier writ application claiming
the self-same relief having been dismissed for non-
prosecution way back in the year 2006, the present writ
petition cannot be entertained on the ground of being hit
by res judicata. Mr. Patnaik further argues that even
otherwise, on own admission of the petitioner, she filed
the present writ petition only when she came to know that
other persons had got the desired relief by filing writ
petitions before this Court. Therefore, the petitioner is
87(1999) CLT 192
nothing but a fence-sitter and hence, not entitled to any
relief. Mr. Patnaik further argues that it is settled law
that the stale claims should not be entertained. The
petitioner's challenge in the earlier writ application to the
alleged coercive steps taken by the authorities to extract
an undertaking from her in the year 1995 cannot be
allowed to agitate the matter at this belated stage as the
said writ application was dismissed. Mr. Patnaik
alternatively argues that as per the relevant notification
issued under G.I.A., 1994, the benefit is to be paid with
effect from 01.06.1994 and not prior to such date. The
petitioner cannot claim it as a matter of right as it is a
policy decision taken by the government.
7. Undisputedly, the petitioner had approached this
Court earlier in OJC No. 515 of 2000 wherein the prayer
was as under:-
"The petitioner therefore, prays that this
Hon'ble Court may graciously be pleased to
admit this writ application, cal for the records
and issue Rule Nisi calling upon the Opp. parties
to show cause as to why the aforesaid illegal
unlawful undertaking under Annexure-5
furnished by the petitioner under the compulsion
against her will on 7.09.95 in a helpless, hapless
and distressed situation for not claiming her
legitimate aforesaid arrear dues prior to 1.06.94,
i.e, during 1991-92, 92-93, and 93-94 shall not
be quashed and why the petitioner will not be
allowed to get benefit her aforesaid arrear dues
prior to 1.6.94 and periodical increments for the
year 1992, 1993 and 1994 including all
consequential service benefits and if they do not
show cause or show insufficient cause issue a
writ of certiorari quashing the aforesaid
undertaking under Annexure-5 furnished by the
petitioner against her will and after quashing the
same issue a writ of Mandamus directing the
O.Ps. to pay the arrear dues prior to 1.6.94 i.e.
during 1991-92, 92-93 and 93-94 at a rate of
60% full salary cost and consequential service
benefits including periodical increments within a
stipulated time or pass any other
order(s)/writ(s)/direction(s) as deem fit and
proper ends of justice.
And for this act of kindness the petitioner
shall as in duty bound every pray."
8. By order dated 06.02.2006, said writ petition was
dismissed for non-prosecution. The petitioner took no
further steps to restore the said writ petition to file.
Almost after six years, i.e. on 01.03.2012, the petitioner
filed the present writ petition with the self-same prayer. It
is well-settled that dismissal of a writ petition not on
merits but on technical ground such as, non-prosecution
would not attract the principle of res judicata but then, in
entertaining the subsequent writ petition the conduct of
the party has to be examined because law is equally well
settled that a party who is guilty of delay and latches is
ordinarily not entitled to any relief. Reference in this
regard may be had to the judgement of the Supreme Court
in the case of Mrinmoy Maity v. Chhanda Koley and
Others,2 wherein in the following observations were
made:-
"11. For filing of a writ petition, there is no
doubt that no fixed period of limitation is
prescribed. However, when the extraordinary
jurisdiction of the writ court is invoked, it has to
be seen as to whether within a reasonable time
same has been invoked and even submitting of
memorials would not revive the dead cause of
action or resurrect the cause of action which has
had a natural death. In such circumstances on
the ground of delay and laches alone, the appeal
ought to be dismissed or the applicant ought to
be non-suited. If it is found that the writ
petitioner is guilty of delay and laches, the High
Court ought to dismiss the petition on that sole
ground itself, in as much as the writ courts are
not to indulge in permitting such indolent litigant
to take advantage of his own wrong. It is true
that there cannot be any waiver of fundamental
right but while exercising discretionary
jurisdiction under Article 226, the High Court will
have to necessarily take into consideration the
delay and laches on the part of the applicant in
approaching a writ court..."
2024 INSC 314
9. Viewed in light of the above legal proposition, this
Court finds that firstly, the claim of the petitioner relates
to release of arrear salary for the period from 01.03.1993
to 31.05.1994. The petitioner was granted the benefit of
GIA with effect from 01.06.1994 by order dated 20.9.1995.
The first writ petition, i.e., OJC No. 515 of 2000 was filed
as late as on 12.01.2000. The said writ petition having
been dismissed on 06.02.2006, the subsequent, i.e., the
present writ petition, was filed on 01.03.2012. Thus, the
present writ petition filed in March, 2012 relates to the
claim for the period beginning from 01.03.1991, i.e., for a
period 21 years back. This is obviously a stale claim
which, as per the settled position of law cannot be
entertained. That apart, on the own admission of the
petitioner, she having come to know about grant of relief
by this Court to similarly situated persons in different
writ petitions filed by them again approached this Court
in the present writ petition. This only makes her a fence-
sitter. To reiterate, her original claim raised in the year
2000 was itself belated. Said writ petition having been
dismissed in 2006, the petitioner took no steps for
restoration of the same. Almost six years later, she woke
up from her long slumber and raised the claim again and
that too because other persons had been granted the
relief. From the conduct of the petitioner as mentioned
above, it is evident that she is a lazy litigant and guilty of
gross delay and laches in staking her claim for which she
is not entitled to any relief.
10. For the foregoing reasons therefore, this Court
finds no reason to entertain the writ petition at this
belated stage, which is therefore, dismissed. There shall
be no order as to costs.
...............................
Sashikanta Mishra,
Judge
B.C. TUDU
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 01-Jul-2024 19:37:19
