[Cites 7, Cited by 0]

Orissa High Court

Kalpataru Sethi vs State Of Odisha & Another .... Opposite ... on 13 March, 2026

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

           IN THE HIGH COURT OF ORISSA AT CUTTACK
     W.P.(C) Nos.31060,35144 & 36169 of 2025
   In the matter of an application under Article 226 and 227
                of the Constitution of India, 1950.
                                   ..................

    Kalpataru Sethi                                                 Petitioner
                                              ....

                                      -versus-


    State of Odisha & Another                 ....            Opposite Parties


                 For Petitioner           :   M/s. M.K. Pati, Adv.

                For Opp. Parties          :   M/s. C.K. Pradhan,
                                              Addl. Govt. Advocate

     PRESENT:


     THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY

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  Date of Hearing: 13.03.2026 and Date of Judgment: 13.03.2026
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      Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Mode.

2. Heard learned counsel appearing for the parties.

3. Since all these Writ Petitions have been filed

inter alia with a prayer to direct the State-Opp. parties

to release the unutilized leave salary on the face of

pendency of the Departmental Proceeding/Criminal // 2 //

Proceeding, all the Writ Petitions were heard

analogously and disposed of by the present common

order.

4. Considering the claim and the submission that

on the face of the pendency of departmental and/or

Criminal or Vigilance Proceeding, similarly situated

employees have been released with the benefit of

unutilized salary on their retirement from service, this

Court passed the following order on 18.12.2025:

"1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. It is contended that on similar issue where the proceeding is pending benefit of unutilized leave salary has been released vide order dtd.03.07.2023. But on the ground of pendency of the proceeding against the Petitioner, the same benefit is not being extended.

4. Considering the submissions made, this Court directs learned Addl. Government Advocate for the State to obtain instruction as to whether benefit under Annexure-5 has been extended even though proceeding is pending against the person concerned.

5. As requested, list this matter in the week commencing 19th January, 2026.

Free copy of this order be handed over to learned AGA for compliance."

5. Pursuant to such order passed, learned Addl.

Govt. Advocate produced the instruction so provided

by the Department of Water Resources vide letter

dt.16.01.2026.

// 3 //

5.1. Basing on the instruction, learned Addl. Govt.

Advocate contended that, though it is not disputed

that in some cases, on the face of pendency of

Criminal Proceeding/Departmental Proceeding, the

State authorities are releasing the unutilized leave

salary in favour of the concerned employee on their

retirement from service, but in some cases, taking into

account the gravity of the charges and mis-

appropriation amount involved, such prayer is being

negatived.

5.2. It is accordingly contended that since in some of

the cases the misappropriation amount is very high,

and the changes are serious, the Departments of the

State are not releasing the unutilized leave salary. It

is accordingly contended that no direction be issued,

as prayed for, in the present batch of Writ Petitions, so

far as release of unutilized leave salary is concerned,

during pendency of Criminal/Departmental

Proceeding.

6. Mr. R.N. Parija, learned counsel appearing in

W.P.(C ) No.36169 of 2025 produced copy of 2(two)

// 4 //

orders showing release of such unutilized leave salary,

on the face of pendency of Disciplinary

Proceeding/Criminal Proceeding, pursuant to the

order passed by this Court in different Writ Petitions.

(Copies of those orders produced in Court be kept on

record).

7. Learned counsels appearing for the Petitioners

contended that by taking unutilized leave salary as a

retiral benefits, various departments of the State while

in some cases are releasing the benefit of unutilized

leave salary, but in some cases, they are taking a

different view and not releasing the benefit only on the

ground of pendency of Departmental and/or

Criminal/Vigilance Proceeding.

7.1. It is contended that if pendency of a

Departmental and/or Criminal/Vigilance Proceeding

is a bar for such release of unutilized leave salary,

gravity of the charges and/or misappropriation of high

amount cannot be the basis for releasing and/or

withholding the benefit and a uniform policy is

required to be followed. It is also contended that

// 5 //

Petitioners being similarly situated, they cannot be

discriminated in view of the provisions contained

under Article-14/16(1) of the Constitution of India and

so also the decision in the case of Arvind Kumar

Srivastav and C. Lalitha.

7.2. Hon'ble Apex Court in the case of State of Uttar

Pradesh & Others Vs. Arvind Kumar Srivastav

and Others in Para-13 & 22 of the said judgment has

held as follows:

"13. In State of Karnataka v. C. Lalitha [State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment : (SCC p. 756, para 29) "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."

xxxx xxxx xxxx xxxxx

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.

// 6 //

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 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."

"22 . Holding that the respondents had also acquiesced in accepting the retirements, the appeal of

// 7 //

U.P. Jal Nigam was allowed with the following reasons:

"13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"

7.3. Hon'ble Apex Court in para 29 of the

decision in the case of C. Lalitha has held as follows:

"29. Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. Moreover, at the

// 8 //

end of the day, the Respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be sub-served if she is allowed to continue in her post and direct the Appellant to consider her seniority in the Administrative Service in terms of the order of this Court dated 15th March, 1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner (Karnataka Administrative Service)."

7.4. It is accordingly contended that the ground on

which Petitioners have been deprived to get the benefit

of unutilized salary is not sustainable in the eye of

law.

8. Having heard learned counsel appearing for the

Parties and considering the submission made, it is

found that on the face of pendency of the

Departmental Proceeding/Criminal Proceeding, State

in some cases is releasing the benefit of unutilized

leave salary on the retirement of an employee and in

some cases, the benefit is not being extended.

8.1. Placing reliance on the provisions contained