Full Judgment Text
NON-REPORTABLE
2024 INSC 954
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14132 OF 2024
(Arising out of SLP (C) No. 27549 of 2024)
STATE OF ODISHA & ORS. …APPELLANTS
VERSUS
DILIP KUMAR MOHAPATRA …RESPONDENT
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
2. By an office order dated 23.04.2001 issued by the
Director of Teacher Education & SCERT, Bhubaneswar,
1
Orissa , the first respondent was engaged as Computer
2.
Technician at the College of Teacher Education, Balasore
The terms of his engagement were as follows:
Signature Not Verified
1
The Director
2
The College
Digitally signed by
INDU MARWAH
Date: 2024.12.10
17:13:53 IST
Reason:
Special Leave Petition (Civil) No. 27549/2024 Page 1 of 14
“………is engaged as Computer Technician at
College of Teacher Education, Balasore in the
scale of Rs. 5500-9000 with usual DA/ADA as
admissible from time to time for a period of one
year or till the post is filled up on a regular basis,
whichever is earlier, with effect from the date he
joins his assignment.
This is purely temporary assignment to help
operate the computer system available to the
college under UGC Development grant. ”
3. Pursuant to the order of engagement, the first
respondent joined the office of the Principal of the College
on 01.05.2001. Later, his services were dispensed with by
the Director vide office order dated 22.01.2002 which
reads thus:
“As the services of Sri Dilip Kumar Mohapatra,
working as Computer Technician in the CTE,
Balasore, no more required is hereby
terminated with effect from 22.01.2002 (A.N.)”
4. Aggrieved by the disengagement order, the first
respondent filed O.A. No. 828 (C) of 2002 before Orissa
3
Administrative Tribunal Cuttack Bench, Cuttack , inter
alia , on the following grounds:
(a) the order violates the principles of natural justice;
and
(b) the order is bereft of reasons.
3
The Tribunal
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5. The appellant (i.e., the State of Odisha) contested the
proceedings before the Tribunal, inter-alia , on the following
grounds:
(a) the engagement of the first respondent was
purely temporary and for a fixed term just to meet
the exigencies of establishment i.e. training
programme and pre-service training programme
and since December 2002 the pressure of work
had lessened, the first respondent was
disengaged; and
(b) the engagement was not pursuant to any
recruitment exercise therefore the first respondent
had no right to the post.
6. During the course of proceedings before the Tribunal,
the first respondent placed reliance on two orders passed
by the Tribunal in O.A. Nos. 2242 of 2002 and 481 of 2008
wherein, according to the first respondent, similarly
situated persons like the first respondent were given the
benefit of reinstatement and pursuant thereto, they were
offered regular appointments.
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7. The Tribunal took the view that since the first
respondent was not appointed by following any procedure
known to law for appointment to a public post, and the
engagement was for a fixed term, the only relief which
could be granted to him is pay and allowances from the
date of his disengagement (i.e. 22.01.2002) till expiry of his
original term of engagement (i.e. 30.04.2002).
8. Aggrieved by the order of the Tribunal, the first
respondent invoked jurisdiction of the Orissa High Court
4
at Cuttack under Articles 226 and 227 of the Constitution
5
of India.
9. By the impugned judgment and order dated
15.12.2022, the High Court allowed the writ petition,
quashed the order of the Tribunal and directed
reinstatement of the first respondent in service with all
service and financial benefits as due and admissible to the
post. While directing so, the High Court reasoned thus:
“7. This Court after going through the
materials available on record finds that the
Petitioner was appointed as a Computer
Technician vide Office order dated 23.04.2001
4
The High Court
5
The Constitution
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under Annexure-1. The said order was issued
with a condition that the Petitioner will
continue for a period of one year or till the post
is filled up on regular basis. But prior to
completion of the said period of one year and
prior to taking any step to fill up the post on
regular basis, the Petitioner was abruptly
terminated from his service vide order under
Annexure-3. From the pleadings available on
the record, it is quite evident that prior to
issuing such order of termination under
Annexure-3 on 22.01.2002 the Petitioner was
neither show caused nor any opportunity of
hearing was given to him. The impugned order
of termination was also passed without
assigning any reason whatsoever. It is also not
the case of the Opposite Parties that the
Petitioner prior to being terminated was ever
show caused and given an opportunity of
hearing. It is also not the case of the Opposite
Parties that the order of termination was
issued because of the fact that the post will be
filled up on regular basis. This Court however
finds that persons similarly situated and
disengaged along with the Petitioner were re-
engaged and subsequently regularized in their
service in terms of the order passed by the
Tribunal in O.A. No.2242 of 2002 and O.A.
No.481 of 2008.
Since the Tribunal while entertaining similar
applications allowed the claim by interfering
with the order of termination and pursuant to
the order so passed, the applicants in O.A.
No.481 of 2008 and O.A. No.2242 of 2002
were not only re-engaged in their services, but
also have been regularized in the meantime,
as per the considered view of this Court, the
Petitioner is entitled to get similar benefit. The
Tribunal as per the considered view of this
Court never take into account the benefit
extended in favour of the applicants in O.A.
No.2242 of 2002 and O.A. No.481 of 2008 in
its proper perspective though the said fact was
brought to the notice of the Tribunal and
discussed under Para-8 of the order.
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8. In view of such admitted position and
placing reliance on the decisions as cited
(supra), this Court finds that the impugned
order of termination has been issued in
violation of the principle of natural justice as
well as without assigning any reason. The
Tribunal also failed to extend similar relief as
has been extended in O.A. No.2242 of 2002
and O.A. No.481 of 2008. Therefore, this Court
is inclined to quash the order dated
23.09.2010 passed by the Tribunal in O.A.
No.828 (C) of 2002 under Annexure-5 as well
as the order dated 22.01.2002 passed by the
Opposite Party No.2 under Annexure-3. While
quashing both the orders, this Court held that
the Petitioner is also entitled for his re-
engagement with all service and financial
benefits as due and admissible.”
10. Aggrieved by the order of the High Court, the State
is in appeal before us.
11. We have heard learned counsel for the parties and
have perused the material on record.
SUBMISSIONS ON BEHALF OF THE APPELLANT
12. Learned counsel for the appellant submitted:
(i) It is an admitted position that the first
respondent was engaged for a period of one year
or till regular selection is made, whichever is
earlier. The order of engagement also specified
that it was purely temporary in nature. In such
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circumstances, as the order of disengagement was
non stigmatic, there was no violation of the
principles of nature justice.
(ii) Assuming that pursuant to an order of the
Tribunal, passed in a separate proceeding, two
similarly situated persons were reinstated, the
same could not have been a ground to allow the
writ petition of the first respondent, particularly,
when the order of the Tribunal suffered from no
illegality/perversity.
(iii) Once the findings of the Tribunal that
appointment of the first respondent was without
following any procedure known to law remained
undisturbed, and no material was placed by the
first respondent to satisfy the conscience of the
Court that he was appointed by following the
prescribed recruitment procedure, there was no
justification for the High Court to interfere.
(iv) Even if it is assumed that dis-engagement
prior to expiry of the term was illegal, the
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appropriate relief would have been to award
compensation as awarded by the Tribunal.
SUBMISSIONS ON BEHALF OF THE FIRST
RESPONDENT
13. Per contra, the learned counsel for the first
respondent submitted:
(i) The disengagement was without assigning any
reason and as such was arbitrary. Moreover, it
was in violation of the principles of natural justice.
(ii) The stand taken by the appellant-State that
due to less work, the services of the first
respondent were dispensed with has no basis, in
as much as similarly situated persons, whose
services were dispensed with in a similar manner,
were given the benefit of reinstatement.
(iii) State being the employer cannot discriminate
between similarly situated employees. Hence, the
High Court was justified in directing
reinstatement of the first respondent.
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ANALYSIS
14. We have considered the rival submissions and
have perused the materials on record. At the outset, we
may observe that there is no dispute as regards the
engagement of the first respondent being purely temporary
to help in operation of computer system made available to
the College under UGC Development Grant and that too
for a fixed term of one year or till regular selection is made,
whichever was earlier. Further, there is no material to
demonstrate that the first respondent was engaged/
appointed against a pre-existing or freshly created
substantive vacancy and that his engagement/
appointment was made by following a procedure
prescribed by statutory rules or executive instructions.
15. In Secretary, State of Karnataka and Ors. Vs.
6
Umadevi and Ors., this Court had cautioned
Constitutional Courts against issuance of directions for
regularization/absorption or continuance of temporary,
contractual, casual, daily-wage or ad hoc employees
6
(2006) 4 SCC 1
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unless the recruitment itself was made regularly and in
terms of the constitutional scheme.
16. Importantly, in this case, the Tribunal had
returned a finding that there was nothing on record to
demonstrate that appointment was made by following any
known procedure for appointment to a public post.
17. Admittedly, the engagement of the first respondent
was for a fixed term for providing help in running computer
system made available under UGC Development Grant.
Further, the stand of the appellant before the Tribunal was
that for shortage of work available, such persons were
disengaged. In these circumstances, even if it is assumed
that in absence of any allegation of misconduct, they ought
not to have been disengaged prior to completion of their
term, direction to reinstate / re-engage them, particularly
after the term period was over, was not justified. In our
view, therefore, the Tribunal was justified in only granting
compensation to the first respondent for the remaining
period of his term.
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18. The High Court, however, granted relief of
reinstatement/re-engagement to the first respondent
because in its view the State had reinstated similarly
disengaged persons pursuant to Tribunal’s orders passed
in separate proceedings instituted by such of those
persons. This, in our view, was not legally correct because
the High Court ought to have examined Tribunal’s order
qua first respondent on its own merit, particularly when
the High Court was not bound by Tribunal’s order.
Besides that, the State cannot be forced to suffer an order
which is not sound in law.
7
19. In State of Odisha v. Anup Kumar Senapati ,
after noticing a series of decisions, a three-Judge Bench of
this Court rejected an argument that petitioners must get
the benefit of parity even if they are not otherwise entitled
to the relief. It was held:
In our opinion, there is no concept of negative
“
equality under Article 14 of the Constitution.
In case the person has a right, he has to be
treated equally, but where right is not
available a person cannot claim rights to be
treated equally as the right does not exist,
negative equality when the right does not
exist, cannot be claimed.”
7
(2019) 19 SCC 626
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20. In State of U.P. & Ors. v. Rajkumar Sharma &
8
Ors. , this Court held that even if in some cases
appointments have been made by mistake, or wrongly,
that does not confer any right on another person. It was
also held that Article 14 of the Constitution does not
envisage negative equality, and if the State committed the
mistake, it cannot be forced to perpetuate the same
mistake.
21. In the light of the discussion above, we are of the
view that the direction of the High Court to reinstate / re-
engage the first respondent, particularly after lapse of the
term of his engagement, is not legally sustainable and,
therefore, it deserves to be set aside.
22. The question which now arises is as to what relief
the first respondent be provided at this stage. Admittedly,
the direction of the High Court to reinstate/ re-engage was
not implemented on account of stay on contempt
proceedings, therefore equities have not been created in
8
(2006) 3 SCC 330
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favour of the first respondent by dint of length of his
continuation in service. In such circumstances, the first
respondent can be compensated with monetary
compensation. In ordinary circumstances, the relief of
compensation as was awarded by the Tribunal would have
been sufficient. But here the State is held to have treated
similarly situated persons differently which has resulted in
unwarranted expectation and prolonged litigation. No
doubt, an attempt is there on part of the State to
distinguish the case of the first respondent with those in
whose favour Tribunal’s order was there, but details of
those distinguishing features have not been brought to our
notice during the course of hearing. Under these
circumstances, we deem it appropriate to award a lump
sum compensation of Rs. 5 lacs to the first respondent as
full and final settlement of all claims against the appellant.
23. Accordingly, the appeal is allowed. Order of the
High Court is set aside. The appellant shall, within three
months from today, pay Rs.5 lacs to the first respondent.
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The said amount shall be full and final settlement of all
claims of the first respondent qua the appellant.
24. Pending application(s), if any, stand(s) disposed of.
…............................................. J.
(Pamidighantam Sri Narasimha)
................................................ J.
(Manoj Misra)
New Delhi;
December 10, 2024
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