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2018 DIGILAW 364 (ORI)

Banalata Mohapatra v. State of Odisha

2018-04-05

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. Choudhury, J. Challenge has been made to the inaction of the opposite parties for not granting arrear grant-in-aid salary to the petitioner for the period from 1.6.1982 to 30.11.2012 against the 2nd post of Lecturer in Economics in Kamala Nehru Women’s College, Bhubaneswar. FACTS 2. The conspectus of the case leading to the writ petition is that petitioner was appointed as a Lecturer in Economics in Kamala Nehru Women’s College, Bhubaneswar on 16.7.1979 and joined the post on 27.7.1979. There was seniority dispute between the petitioner and one Sabita Acharya relating to the 1st post of Lecturer in Economics in the said College and that was decided against the petitioner in O.J.C. No.867 of 1990. Against that order, she went to the Hon’ble Supreme Court vide Civil Appeal No.3472 of 1998. That was disposed of on 11.5.1999 by upholding the decision of this Court but there was observation of the Hon’ble Supreme Court that the appellant is entitled to get the benefit for the second post provided if she is otherwise qualified. Said judgment has also reported in AIR 1999 SC 1739 . 3. The Governing Body of the College purportedly recommended to release grant-in-aid in favour of the petitioner in respect of the second post of Lecturer in Economics by observing that she is entitled to get grant-in-aid with effect from 1.6.1982. Since the grant-in-aid was not released, the petitioner approached this Court vide O.J.C. No.7813 of 2001 which was disposed of on 26.7.2001 directing the Opposite Party No.2 to dispose of the recommendation of the Principal in favour of the petitioner within a period of two months as there no result came out, the petitioner filed a fresh writ petition vide W.P.(C) No. 5302 of 2002 which was disposed of on 30.8.207 permitting the petitioner to withdraw the writ petition with liberty to move the State Education Tribunal. So, the petitioner filed G.I.A. Case No.208 of 2007 before the learned State Education Tribunal (hereinafter called “the Tribunal”). The learned Tribunal by order dated 22.3.2010 declared that the petitioner is entitled to grant-in-aid with effect from 1.6.1982 against the second post of Lecturer in Economics and accordingly direction was issued to the opposite parties to release grant-in-aid in favour of the petitioner within three months. 4. The learned Tribunal by order dated 22.3.2010 declared that the petitioner is entitled to grant-in-aid with effect from 1.6.1982 against the second post of Lecturer in Economics and accordingly direction was issued to the opposite parties to release grant-in-aid in favour of the petitioner within three months. 4. As the order passed by the learned Tribunal was not complied, the petitioner approached this Court in W.P.(C) No.17706 of 2010 and at the same time filed Execution Case No.67 of 2011 before the Tribunal for implementation of the order. While the matter stood thus, the opposite parties had filed F.A.O. No.195 of 2012 against the order of the learned Tribunal before this Court. Since the F.A.O. was pending, the learned Tribunal in the Execution Case directed to execute the order dated 22.3.2010 subject to result of F.A.O. No.195 of 2012. The F.A.O. No.195 of 2012 was dismissed by this Court on 2.7.2013 on the ground of delay. So, the petitioner submitted the certified copy of the order of this Court passed in F.A.O. No.195 of 2012 with her representation to the Opposite Party No.1 to release her dues in terms of the order dated 22.3.2010 passed in G.I.A. Case No. 208 of 2007. As there was no action taken in her representation, the petitioner filed Contempt Petition vide CONTC No.1374 of 2013 before this Court. But said Contempt Petition was allowed to be withdrawn granting liberty to the petitioner to file a writ petition assailing the inaction of the opposite parties for not releasing grant-in-aid in terms of the order passed by the Tribunal. In terms of the liberty given, the petitioner filed W.P.(C) No. 4880 of 2014 seeking release of arrear salary and other dues including retiral dues as in the meantime she has retired on 30.11.2012. 5. The above writ petition was disposed of on 10.4.2014 by this Court with a direction to the State Government as well as to the opposite party No.2 to comply the order of the learned Tribunal in releasing grant-in-aid in her favour within a period of two months. That order was not complied. While W.P.(C) No.4880 of 2014 was pending, the State Government challenged the order dated 2.7.2013 passed by this Court in F.A.O. No.195 of 2012 before the Hon’ble Supreme Court, which was reportedly dismissed. That order was not complied. While W.P.(C) No.4880 of 2014 was pending, the State Government challenged the order dated 2.7.2013 passed by this Court in F.A.O. No.195 of 2012 before the Hon’ble Supreme Court, which was reportedly dismissed. Since the order passed in W.P.(C) No. 4880 of 2014 was not complied, the petitioner filed CONTC No. 691 of 2014 on 11.7.2014. In that Contempt Petition the Government Advocate produced a letter stating that the order dated 10.4.2014 passed in W.P.(C) No. 4880 of 2014 has been complied but this Court giving liberty to the petitioner to move the appropriate forum ventilating her grievance if any further cause of action survives. Accordingly the CONTC was disposed of. 6. After going through the letter No.818 dated 16.11.2015 of the opposite parties served on the petitioner, she found the Government has accorded their concurrence for approval of the second post of Lecturer in Economics in favour of the petitioner for payment of grant-in-aid with date of eligibility, i.e., with effect from 1.6.1982 @ 1/3rd, with effect from 1.6.1984 @ 2/3rd and with effect from 1.6.1986 @ full. But in that letter at para-3 it has been stipulated that arrear claim as admissible to the petitioner may be calculated restricting to three years prior to the institution of G.I.A. Case No.208 of 2007 as per the ratio decided by the Hon’ble Apex Court in Union of India v. Tarsem Singh, reported in (2008) 8 SCC 648 and also subject to the provision under Section 7(C) of the Orissa Education Act, 1969. Since para-3 of the said letter stipulates a condition which is not required in the present case and the said decision is also not applicable to the facts and circumstances of the case, the present writ petition was filed to quash the letter dated 27.6.2015 and to direct the opposite parties to release arrear salary in favour of the petitioner for the period from 1.6.1982 to 30.11.2012 against the second post of Lecturer in Economics in Kamala Nehru Women’s College with interest. SUBMISSIONS 7. Learned counsel for the petitioner submitted that the litigation is running right from 2001. Even if the petitioner is not entitled to the first post of Lecturer in Economics but for the second post of Lecturer in Economics in Kamala Nehru Women’s College, she is entitled to get the arrear salary as per the decision of the Governing Body. Learned counsel for the petitioner submitted that the litigation is running right from 2001. Even if the petitioner is not entitled to the first post of Lecturer in Economics but for the second post of Lecturer in Economics in Kamala Nehru Women’s College, she is entitled to get the arrear salary as per the decision of the Governing Body. 8. Since this Court has directed to approach the Tribunal and the Tribunal has passed the order in favour of the petitioner, there is no reason to deny the entitlement of the petitioner to get the salary of second post of Lecturer in Economics right from 1.6.1982 till her retirement. Apart from this, the Hon’ble Supreme Court has turned down the Civil Appeal and also the S.L.P. filed by the State Government at different occasions with regard to the same cause of action. Since the matter has already set at rest by the Hon’ble Apex Court, any inaction by the opposite parties denying the claim of the petitioner not only amounts to contempt but also violation of Articles 14 and 16 of the Constitution. 9. Learned counsel for the petitioner further submitted that the State Government while admitting the claim of the petitioner by releasing the grant-in-aid salary right from 1982 with certain fraction but put a unnecessary clause which actually denies the claim of the petitioner. The decision of the Hon’ble Supreme Court in Tarsem Singh’s case (supra) states that the claim made in the writ petition for any arrear benefit should be limited to three years from the date of filing of the writ petition. In the instant case, as the cause of action arose in 2001 after disposal of the writ application, i.e., O.J.C. No.867 of 1990 claiming the second post of Lecturer in Economics with effect from 1.6.1982 and the matter has been already deferred by the State from time to time by dragging the petitioner into the litigation till 2015, the ratio decidendi in Tarsem Singh’s case (supra) does not apply to the present case. Hence, it is submitted by the learned counsel for the petitioner that the letter vide Annexure-7 be modified by deleting para-3 thereof and to allow grant-in-aid arrear salary to the petitioner from 1.6.1982 to 30.11.2012. 10. Hence, it is submitted by the learned counsel for the petitioner that the letter vide Annexure-7 be modified by deleting para-3 thereof and to allow grant-in-aid arrear salary to the petitioner from 1.6.1982 to 30.11.2012. 10. Learned Additional Government Advocate submitted that the State Government has already carried out the order of the Court passed in the aforesaid writ petition and accordingly vide Annexure-7 issued Government order by stating following entitlements: Sl. No. Name of the incumbent holding the post with Scale of pay Nature of post Date of eligibility Quantum of grant-in-aid admissible Remarks 1. Banalata Mohapatra Rs.525/-to 1300/- Lecturer in Economics (2nd Post) 01.06.1982 01.6.1982@1/3rd 01.06.1984@2/3rd 01.06.1986@ Full 11. At the same time vide Annexure-7 the State Government has directed that arrear claim as admissible to the petitioner is only restricted to three years prior to institution of G.I.A. Case No.208 of 2007 as per the ratio decided by the Hon’ble Apex Court in Union of India v. Tarsem Singh, reported in (2008) 8 SCC 648 and be paid to the incumbent subject to the provision under Section-7 (C) of the Orissa Education Act, 1969. There is no fault with the State Government by denying the claim of the petitioner but due to the decision of the Hon’ble Apex Court her arrear claim is limited to only three years prior to filing of application for grant-in-aid in 2007. Therefore, the petitioner has no any claim to receive payment for which the same is liable to be dismissed. 12. Point for consideration:- (i) Whether the claim of the petitioner is defeated by the judgment of the Hon’ble Apex Court in Tarsem Singh’s case (supra) ? DISCUSSION 13. It is admitted fact that the petitioner was appointed against the 2nd post of Lecturer in Economics. It is not in dispute that petitioner had claimed to the 1st post of Lecturer in Economics against one Sabita Acharya who filed O.J.C. No.867 of 1990 which went against the petitioner. Thereafter the petitioner carried the matter before the Hon’ble Supreme Court in Civil Appeal No.3472 of 1998 which was finally decided on 11.5.1999 declining the petitioner to the 1st post of Lecturer in Economics. Thereafter the petitioner carried the matter before the Hon’ble Supreme Court in Civil Appeal No.3472 of 1998 which was finally decided on 11.5.1999 declining the petitioner to the 1st post of Lecturer in Economics. It is not in dispute that the Governing Body of the College has recognized her to the 2nd post of Lecturer in Economics for which informed the Director of Higher Education to release grant-in-aid in respect of the petitioner on such second post with effect from 1.6.1982. It is admitted fact that the petitioner had to approach this Court in O.J.C. No.7813 of 2001 for a direction to accept the recommendation of the Governing Body of the College. 14. It is further admitted fact that as the Director of Higher Education did not dispose of the recommendation of the Principal in spite of the order of this Court within a stipulated time, the petitioner filed W.P.(C) No. 5302 of 2002 which was disposed of on 30.8.2007 permitting the petitioner to approach the State Education Tribunal. It is also admitted fact that that the petitioner accordingly filed G.I.A. Case No.208 of 2007 wherein she was allowed the Grant-in-aid with effect from 1.6.1982 against the 2nd post of Lecturer in Economics. It is also admitted fact that as the said order of the Tribunal was not complied, the petitioner approached this Court in W.P.(C) No. 17706 of 2010 and this Court allowed the petitioner to file Execution Case before the Tribunal to execute the order. That Execution Case No.67 of 2011 was disposed of directing the opposite party No.1 to comply the order. It is also admitted fact that in the meantime F.A.O. No.195 of 2012 filed against the final order passed in G.I.A. Case No.208 of 2007 before this Court got dismissed. It is admitted fact that S.L.P. against F.A.O. No.195 of 2012 was also dismissed. 15. The aforesaid F.A.O. although was dismissed but the dues of the petitioner were not released. So, CONTC No.1374 of 2013 was filed but was subsequently withdrawn in terms of liberty to file writ application vide W.P.(C) No.4880 of 2014. In that case also admittedly the Court passed the order to comply the order passed by the Tribunal. At the same time, this Court in W.P.(C) No.4880 of 2014 passed order that if the order of the Tribunal is not complied it would amount to contempt. In that case also admittedly the Court passed the order to comply the order passed by the Tribunal. At the same time, this Court in W.P.(C) No.4880 of 2014 passed order that if the order of the Tribunal is not complied it would amount to contempt. In spite of these orders the opposite party No.1 did not comply the order of releasing the arrear dues and CONTC No.691 of 2014 was filed and finally the State Government passed order vide Annexure-7 stating that the order of this Court have been complied. In terms of the above peculiar facts and circumstances, Annexure-7 was issued in following manner : “Government of Orissa Department of Higher Education **** HE-FE-IV(A)CASE-474/2014/3908 H.E., Dated 27.6.15 From Sri Mukunda Kissan, OAS (SAG) Addl. Secretary to Government To The Director, Higher Education, Odisha, Bhubaneswar Sub: Prior concurrence of Government for issue of approval order to the post of Non-Government Aided Colleges for receiving grant-in-aid. Sir, In pursuance of the order of the dated 22.03.2010 of the Learned State Education Tribunal passed in GIA Case No.208/207 & order dated 10.04.2014 of the Hon’ble High Court passed in W.P.(C) No.4880/2014-Banalata Mohapatra Vs. State of Odisha & others & consequent of dismissal of S.L.P. (Civil) No.3264/2015, I am directed to say that Government have been pleased to accord their concurrence for approval of 01 (one) no of post in favour of Kamala Neheru Womens College, Bhubaneswar, Dist-Khurda for payment of grant-in-aid with effect from the dates as mentioned below : Sl. No. Name of the incumbent holding the post with Scale of pay Nature of post Date of eligibility Quantum of grant-in-aid admissible Remarks 1. Banalata Mohapatra Rs.525/-to 1300/- Lecturer in Economics (2nd Post) 01.06.1982 01.6.1982@1/3rd 01.06.1984@2/3rd 01.06.1986@ Full 2. Current salary at the rate as admissible to the petitioner may be released beginning from the current financial year. 3. Arrear claim as admissible to the incumbent may be calculated restricting to 3 years prior to the institution of GIA Case No.208/2007 as per ratio decided by the Hon’ble Apex Court in Union of India Vs. Tarsem Singh, (2008) 8 SCC 648 and be paid to the incumbent subject to the provision under Sec-7(C) of the Orissa Education Act, 1969. The Director, Higher Education will be reasonable for scrutinizing the records of the College with regard to the claim decided in favour of the petitioner. 4. Tarsem Singh, (2008) 8 SCC 648 and be paid to the incumbent subject to the provision under Sec-7(C) of the Orissa Education Act, 1969. The Director, Higher Education will be reasonable for scrutinizing the records of the College with regard to the claim decided in favour of the petitioner. 4. This approval order is subject to the stipulation under paragraph 21 of the Orissa (Non-Government Colleges/Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994. 5. Necessary approval to the appointment against the above said post may be accorded at your level. Yours faithfully, Sd/- Addl. Secretary to Govt.” 16. The aforesaid order clearly shows that on 27.6.2015 for the first time the Government accepted the order of the Tribunal and made admissibility of the grant-in-aid in favour of the petitioner with effect from 1.6.1982 @ 1/3rd, 1.6.1984 @ 2/3rd and 1.6.1986 @ Full but made release of the arrears as per the decision of the Hon’ble Apex Court in Tarsem Singh’s case where the Hon’ble Apex Court observed at para-7 in the following manner : “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 re-opening 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 re-fixation 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. For example, if the issue relates to payment or re-fixation 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. In so far 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, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 17. With regard to the aforesaid decision, it is clear that if the wrong is continuing, it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury even there is long delay in seeking remedy with reference to the date to which continue wrong commenced, the claim cannot be defeated. 18. Now adverting to the present case that the petitioner has been approaching different forum since 2001 and finally the matter was culminated by the order of the Hon’ble Apex Court in 2013, it is a continuous wrong and the wrong doer is the opposite parties who have dragged litigation. So, according to principle in Tarsem Singh’s case, the petitioner is not responsible for the delay but the opposite party No.1 is responsible for long delay in clearing the arrears of the petitioner. That apart, on 27.6.2015 the opposite party No.1 admitted that she is entitled to grant-in-aid from 1.6.1982. It appears that the writ petition was filed in 2017. On the other hand, there is no delay at all in making claim through this petition. Hence, following the judgment of Tarsem Singh’s case as per the facts and circumstance of this case, the petitioner is entitled to quantum of grant-in-aid with effect from 1.6.1982. Hence, the contention of the learned Additional Government Advocate that as per Tarsem Singh’s case the petitioner is not entitled to get arrear from 1.6.1982 is indefensible. Thus, the judgment of Tarsem Singh’s case does not defeat the claim of the petitioner. The point is answered accordingly. CONCLUSION 19. Hence, the contention of the learned Additional Government Advocate that as per Tarsem Singh’s case the petitioner is not entitled to get arrear from 1.6.1982 is indefensible. Thus, the judgment of Tarsem Singh’s case does not defeat the claim of the petitioner. The point is answered accordingly. CONCLUSION 19. In the writ petition, it is prayed to quash the stipulation made in para-3 of the impugned order dated 27.6.2015 under Annexure-7 and at the same time to allow the petitioner for releasing differential arrear salary for the period from 1.6.1982 to 30.11.2012 against the 2nd post of Lecturer in Economics. 20. In view of the aforesaid discussion that the petitioner is entitled to the salary under grant-in-aid with effect from 1.6.1982 till her retirement, i.e., 30.11.2012, the observation made in para-3 of Annexure-7 that she is entitled to only three years prior to filing of the G.I.A. case vide the observation of the Hon’ble Apex Court in Tarsem Singh’s case is illegal and de hors the principle of law. So, the said portion of Annexure-7 is hereby quashed. Not only this but also the Court direct the opposite party No.1 to issue fresh notification by modifying the same as per the observation made above. It is further directed that the petitioner be released with the differential arrear salary for the period from 1.6.1982 to 30.11.2012 as observed above. The entire exercise be completed within a period of four months from today. The writ petition is disposed of accordingly.