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2021 DIGILAW 242 (ORI)

Berhampur University v. Ganesh Chandra Behera

2021-06-11

S.K.PANIGRAHI, SANJU PANDA

body2021
JUDGMENT S. K. Panigrahi, J. - In the present Writ Appeals, the appellants seek to challenge the common judgment and order dated 19.11.2019 passed by the learned Single Judge in W.P. (C) No.29460 of 2011 and W.P.(C) No.30837 of 2011 wherein the learned Single Judge has concluded that; " xxxx xxxx xxxx 19. Therefore, applying the above mentioned law laid down by the apex Court and also of this Court to the present context, this Court is of the considered view that as the petitioners have worked in the higher post and discharged higher responsibility attached to the said post, being appointed against the vacant posts by following DPC, subsequently reverted, but by following review DPC again promoted to the post of Senior Assistant, therefore, the benefits which they have already received that cannot be curtailed or reduced in any manner. Consequentially, their scale of pay should be fixed accordingly and the direction given, vide order dated 20.12.2011 in Annexure-7, for reducing their salary to the basic minimum scale of pay, cannot sustain in the eye of law and the same is hereby quashed to that extent. 20. Both the writ applications are thus allowed. No order to costs." 2. Since common question of facts and law are involved in both of these Writ Appeals, the same were heard together and are being disposed of by this common judgment. 3. The factual background of the matter revolves around the fact that in the year 1994, the appellant University decided to upgrade 9 Junior Assistants to the position of Senior Assistants subject to approval being accorded by the Department of Higher Education, Odisha and the Chancellor of Berhampur University. Similarly, 9 Junior Assistants were additionally promoted to the position of Senior Assistants in the year 1997 subject to the approval as aforementioned. 4. Subsequently, however, the Department of Higher Education, Odisha did not accord approvalto the recommendation for such upgradation and instead informed the office of the Chancellor, Berhampur University to revert the candidates in question to their original position as well as to recover the excess payments made consequent to their upgradation as Senior Assistants. Consequently, on 29.07.2004 the Chancellor denied approval for the upgradation for the 18 Junior Assistants who had been promoted and directed that all of them be restored to their position as held by them before the upgradation had taken effect. Consequently, on 29.07.2004 the Chancellor denied approval for the upgradation for the 18 Junior Assistants who had been promoted and directed that all of them be restored to their position as held by them before the upgradation had taken effect. Therefore, on 06.09.2007, an order was passed by the appellant University reverting such upgraded Senior Assistants to their previous position as was held by them before the upgradation. 5. It is pertinent to note here that the appellant University's order dated 06.09.2007 restoring those upgraded Senior Assistants to their previous posts was challenged before this Hon'ble Court vide W.P.(C) Nos.12854 of 2007, 11368 of 2007, 12562 of 2007, 12564 of 2007 and 12566 of 2007. These Writ Petitions were disposed of by this Court vide a common judgment and order dated 4.08.2011 wherein while upholding the order of reversion, it was directed that the then petitioners, now respondents be placed and adjusted in the gradation list of Junior Assistants as they would have been placed prior to their date of upgradation and not at the bottom of the list. It was further directed therein that if any consequential benefits hadaccrued to such persons from the date of their upgradation to the date of their reversion, the same shall be conferred on them in accordance with the rules as applicable. 6. In light of the said order, the appellant University decided to constitute a review Departmental Promotion Committee (hereinafter referred to as "DPC") and issued a notice to the members of the DPC vide letter dated 31.10.2011. Being aggrieved by the decision of the appellant University to conduct a DPC, the present respondents filed W.P. (C) No.29460 of 2011 and W.P.(C) No.30837 of 2011, whose final order and judgment is assailed in the present Writ Appeals. 7. At the time of admission of the matter, as an interim measure, the learned Single Judge vide its order dated 09.11.2011 in the abovementioned Writ Petitions directed that the appellant University may proceed with the DPC but shall not act upon the result of the DPC till 15.01.2012. Thereafter, the DPC was held on the dates as scheduled, i.e., 11.11.2011 and 12.11.2011 but the result was not published in deference to the interim order passedby the learned Single Judgevide order dated 09.11.2011. Thereafter, the DPC was held on the dates as scheduled, i.e., 11.11.2011 and 12.11.2011 but the result was not published in deference to the interim order passedby the learned Single Judgevide order dated 09.11.2011. After the same, it seems, the said interim order was not extended and the decision of the DPC was implemented, wherein the respondents were again promoted to the position of Senior Assistants, however, their pay was fixed at the basic minimum scale of pay for Senior Assistants due to the renewed date of promotion, discounting their past service rendered. It is noted here that other Junior Assistants who were junior to the present respondents but had been promoted with prior approval after the present respondents were placed at a higher pay than the present respondents due to them being promoted before the present respondents. 8. The present respondents during the course of arguments contended that their scale of pay should be protected, as they have worked in the Senior Assistant post during the relevant point of timefor a substantial period and have discharged the heavier duties attached to the higher post, an argument which has rightly found favourwith the learned Single Judge. The fact that such a contention was not pleaded in the writ petition, as originally filed,which the learned Single Judge has been fully cognizant of during the course of hearing which is well reflected in the impugned order. 9. Learned counsel for the appellantsMr. ManojKumar Mishra, Senior Advocate submits that the prayer for protecting the scale of pay was not made in the earlier proceedings and therefore the learned Single Judge ought not to have proceeded to grant a relief without any prayer being made to that effect. The present respondents had challenged the notice dated 31.10.2011 of the appellant University to hold the DPC but hadn't challenged the review DPC before this Hon'ble Court and therefore were not entitled to the relief granted to them. 10. On the contrary, Mr.Jagannath Patnaik,learned Senior Advocateappearing for the respondentscontends that the present Writ Appeals are completely devoid of merit and that have failed to make out a casefor setting aside of the impugned judgment and order. He, further, submits that the learned Single Judge was conscious of the fact that the relief granted by him was not claimed for by the present respondents. He, further, submits that the learned Single Judge was conscious of the fact that the relief granted by him was not claimed for by the present respondents. He contendsthat thequestion of moulding of relief being a question of law simpliciter could have been argued at any stage of the proceeding.He has also submitted that the records of the case make it clear that the learned Single Judge has aptly proceeded to apply the law in order tomould the relief only after hearing both sides. Hence, the contention that the present petitioner was prejudiced have no force. 11. Heard learned counsel for the parties. The elemental grievance of the appellants herein is that the learned Single Judge ought not have granted relief without any prayer being made to that effect by the present Respondents. It thus necessitates that the law on the subject be looked at so as to appreciate the impugned order better. 12. The origin of the principle of "moulding of relief" can be traced back to Patterson v. State of Albama,1935 294 US 600 wherein Hughes C.J. held to the following effect: "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered." The Hon'ble Supreme Court of India in the case of Laxmi & Co. v. Anant R. Deshpande, (1973) 1 SCC 37 while determining whether subsequent events can be considered in the interest of justice has held that; "27. It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice." In the case of Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770 the Hon'ble Supreme Court further elaborately dealt with the issue whether the High Court ought to have taken cognisance of subsequent events. It was authoritatively held that; "4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis- -vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink as it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. 13. Following this settled position of law, in the case of State Bank of India v. N. Sundara Money, (1976) AIR SC 1111 the Hon'ble Supreme Court applied the principle of moulding of relief, by reinstating a bank employee on account of the long period of time that had elapsed, on the condition that his new salary will be the same, as if he were to be appointed in the same post in the present day despite the same not being mentioned in the prayer in order to secure the ends of justice. Similarly,in the case of Rameshwar v. Jot Ram, (1976) 1 SCC 194 the Hon'ble Supreme Court held that the Court's procedural delays cannot deprive a litigant of real justice or rights crystallised in the initial cause of action. The Court observed: "....where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts." "... ...subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category but may influence the equitable jurisdiction to mould reliefs. ...subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and its made applicable at any stage." In the same vein in the cases of Amarjit Singh v. Smt. Khatoon Quamarain, (1987) AIR SC 741 and Ramesh Kumar v. Kesho Ram, (1992) Supp2 SCC 623 the Hon'ble Supreme Court reiterated its earlierview expressed in the case of Pasupuleti Venkateswarlu (supra). In Ramesh Kumar (supra) the Supreme Court, after taking into account the principles enunciated in Pasupuleti Venkateswarlu (supra) and other judgments, observed that when subsequent events are pleaded, the Court may, having regard to the nature of the allegations of fact on which the plea is based permit evidence by way of affidavits. The Court observed that there cannot be any hard and fast rule governing the procedure to be adopted while bringing on record subsequent events of fact or law which would have material bearing on the entitlement of the parties to relief or aspects which bear on the mouldingof the relief. The Court observed that technicalities should not burden the procedure which is required. It is aptly said that procedural law is nothing but a hand maiden of justice. 14. Taking the principle as laid down in Laxmi & Co. v. Anant R. Deshpande(supra) a step further, the Hon'ble Supreme Court in Sheshambal (dead) through LRs v. Chelur Corporation Chelur Building, (2010) 3 SCC 470 succinctly laid down the conditions in which the relief can be moulded: "(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise." The normal rule as laid down in Ramesh Kumar v. Kesho Ram(supra) is that in any litigation the rights and obligations of the parties are adjudicated upon as obtained at the commencement of the litigation. However, and whenever the development with regard to subsequent events of fact or law, which have a material bearing on the rights of the parties to seekthe relief sought or on the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief. On the contrary, it would be in the interest of justice to take note of such developments and mould the relief accordingly. In Hukum Chandra v. Nemi Chand Jain, (2019) 13 SCC 363 the Apex Court surmised that, "15. Rights of the parties stand crystallised on the date of institution of the suit. However, in appropriate cases, court can take note of all the subsequent events. Observing that the court may permit subsequent event being introduced into the pleadings by way of amendment as it would be necessary to do so for the performance of determining the rule in controversy for the parties provided certain conditions are being satisfied..." In the case of Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 ,the Apex Court dealing with the earlier line of judgments specifically Pasupuleti (supra) and Sheshambhal (supra) have come to a conclusion as hereunder: "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, (1975) 1 SCC 770 , this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed." 15. All these aforementioned legion of precedents, cumulativelycrystallizethe position of law that, if this Court drags its feet to mould a relief, which is otherwise necessitated, to secure the ends of justice, it would lead to a sheer travesty of justice. To notice a subsequent event that substantially alters a party's rights and obligations but to do nothing about it would not serve the purpose that constitutional courts are mandated to perform. Instead, it would lead to a collapse of the judicial machinery. It is the Court's onerous and bounded duty to do complete justice between parties in a lis. 16. To notice a subsequent event that substantially alters a party's rights and obligations but to do nothing about it would not serve the purpose that constitutional courts are mandated to perform. Instead, it would lead to a collapse of the judicial machinery. It is the Court's onerous and bounded duty to do complete justice between parties in a lis. 16. Another facet which needs to delved upon is that of the power of a High Court to mould relief in cases where it feels it is just to do so.The position of law on that aspect remains that a writ court exercising itsjurisdiction under Article 226 of the Constitution is empowered to mould the relief that is claimed by a party as has beenheld in the case of Food Corporation of India v. S. N. Nagarkar, (2002) 2 SCC 475 .In the case of Dwarka Nath v. ITO, (1965) 3 SCR 536 the Hon'ble Supreme Court has succinctlyopined that: "4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads: "...every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. ... It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. ... To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. ... It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. ... To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in Basappa v. Nagappa, (1962) 2 SCR 169 and Irani v. State of Madras, (1955) 1 SCR 250 " Further, the Hon'ble Supreme Court in the case of B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 observed that this Court while exercising the jurisdiction under Article 226 of the Constitution has inherent power to do complete justice. Doing complete justice is the requirement of the fact situation of the present case.Technical hurdle of improper drafting of relief clause and pleading should not come in the way to secure justice. The same can be done even by moulding the relief prayed for. The Supreme Court in the aforesaid case has also held that; "The mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material. The High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. Power to do complete justice also inhere in every court, not to speak of a court of plenary jurisdiction like a High Court." 17. Thus, on this front also, the Hon'ble Supreme Court in a catena of judgements has time and again clarified that the High Courts in theexercise of their jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of a case, in a holistic manner,in order to pass appropriate orders to do complete and substantial justice. One of the ends of equity is to promote honesty and fair play. It is not only within its power but also the duty of the High Court while exercising such a power to advance the ends of justice and to uproot injustice. One of the ends of equity is to promote honesty and fair play. It is not only within its power but also the duty of the High Court while exercising such a power to advance the ends of justice and to uproot injustice. While granting relief, the High Court is expected to balance equities by moulding the relief and passing an appropriate order which justice may demand and equities may project. Courts of equity should go much further, both to give and refuse relief in furtherance of public interest. The granting of relief or withholding it would depend upon considerations of justice, equity and good conscience. 18. Moulding of relief is not ordinarily done by the court and it can be done only when during the pendency of the lis some change having taken place in such cases, taking a holistic view of the matter, in order to better serve the ends of justice, the relief can be moulded. As has been held in the case of Vishwesh Rajratnam v. State of U.P,2019 SCCOnLineAll 2285 ; "35. Grant of relief is the moment of reckoning in the process of law and the redeeming act of justice by the courts. Relief is not an act of philanthropy by the courts nor is it a windfall for the litigant. Grant of relief is guided by balance of multiple issues and clear and manageable standards. The residual discretion will be exercised in the light of the conscience of the court." The powers of an appellate court to do complete justice are to make good such disposition, as justice so necessitates. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the litigation commenced. 19. Therefore, in view of pronouncements of the Apex Court, so far as "moulding of relief" is concerned, this Court is of the considered view that even if there is no such specific prayer has been made in the writ petitions, this Court can and ought to grant such relief.The principle of "moulding of relief" has been rightly invoked by the learned Single Judge because allowing the writ petitions in its original form would have been antithetical to the relief sought in the original form of the writ petitions. Therefore, thelearnedSingle Judge after due consideration of the fact that it was the second round of litigation and in order to thwart any possibility of future litigation arising out of the same issue did well to cut through the clutter and get to the root of the issue in order to do complete and substantial justice between the parties by moulding the relief. 20. The respondents have served in the higher post of Senior Assistant for the duration of their upgradation to the best of their ability and have discharged higher responsibility which comes attached tothe said post. The respondents, subsequently reverted, then once again restored by following a review DPC is not attributable to any fraud or mischief or illegality committed by them. Despite the fact that the present respondents had only challenged the notice dated 31.10.2011 of the appellant University to hold the DPC, the direction by the DPC whereby despite their reinstatement to Senior Assistant, their salary was reduced to the basic minimum scale of pay was grossly incorrect and could not sustain in law. It was unfair and arbitrary. The learned Single Judge has aptly taken note of this subsequent event and moulded the relief claimed to that extent in order to ensure that complete justice was done to the present respondents. 21. Thus, on perusal of the materials available on record,the settled position of law and considering the submissions of learned counsels for the parties herein, we are not inclined to interfere with the impugned judgment and order dated 19.11.2019 passed by the learned Single Judge in W.P.(C) No.29460 of 2011 and W.P.(C) No.30837 of 2011. 22. Accordingly,The Writ Appeals, being devoid of any merit must fail and the same are dismissed. No order as to costs.