Bikram Parida Vs State of Odisha

ORISSA HIGH COURT : CUTTACK

W.P.(C) No.33882 of 2021

In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

Bikram Parida Aged about 59 years Son of Late Sunakar Parida Village: Era, P.O.: Purusotampur P.S.: Kendrapara Sadar, District: Kendrapara. … Petitioner.

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-VERSUS-

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1. State of Odisha Housing and Urban Development, Secretariat Building, Odisha Bhubaneswar, District: Khordha.

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2. The Director Municipal Administration and Ex-Officio , Additional Secretary to Government, Secretariat Building Bhubaneswar, District: Khordha

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3. Commissioner Rourkela Municipal Corporation At/P.O./P.S.: Rourkela, District: Sundargarh. … Opposite Parties.

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Counsel appeared for the parties:

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For the Petitioner : M/s. Niranjan Lenka, Hemanta Kumar Mohanta, Nibedita Lenka and Prasanta Kumar Barik, Advocates

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For the Opposite party : Mr. Arnav Behera Nos.1 and 2 Additional Standing Counsel For the Opposite party : M/s. Pabitra Kumar Nayak, No.3 Himanshu Bhusan Dash, Adhikari Cittaranjan Das Kshitish Kumar Jena and G.C. Mohapatra, Advocates

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P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 23.08.2024 :: Date of Judgment : 27.08.2024

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JUDGMENT

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Challenging the Order dated 06.09.2021 passed by the Director Municipal Administration and Ex-Officio Additional Secretary to Government of Odisha in Housing and Urban Development Department, wherein and whereby the representation dated 03.02.2021 of the petitioner to antedate regularization of his service from the date of his joining in service, i.e ., 13.11.1992 or in the alternative the date of sanction of post of Homeopathic Assistant, i.e ., 08.03.2000 in place of 06.03.2019, i.e., date on which this Court disposed of writ petition, being W.P.(C) No.4802 of 2008, has been rejected, the petitioner has come up before this Court craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with the following prayer(s):

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“It is, therefore, prayed that this Hon’ble Court be graciously pleased to admit the writ application, issue Rule NISI in the nature of writ of mandamus or any other writ/writs as deem fit and proper calling upon the opposite parties to show cause as to why the order No.15854 dtd.06.09.2021 vide Annexure-10 passed by the opposite party no.2 rejecting the representation of the petitioner and all actions pursuant thereto shall not be quashed and why the date of regularization of the service of the petitioner shall not be antedated to 13.11.1992 or 08.03.2000, i.e., the date of his joining in service or the date of sanction of the post respectively, from 06.03.2019 with all service benefits.

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In the event of the opposite parties fail to show-cause or show insufficient cause said rule be made absolute.

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And further be pleaded to pass any order/orders, direction/directions as deem fit and proper.

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And for this act of kindness, the petitioner shall as in duly bound ever pray.”

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Facts:

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2. As set forth by the writ petitioner, on consideration of application for the post of Homoeopathic Assistant having faced recruitment test along with others, the petitioner was engaged on daily wage basis (Daily Muster Roll) under the Paradeep Notified Area Council by the following Office Order No.2208, dated 13.11.1992:

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Office of the Notified Area Council Paradeep. No.2208(4)/Dt.13.11.1992 Office Order

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The following persons are hereby engaged on daily wages basis for smooth management of official work. They are directed to resume their duties as per assignment of work as follows:

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1. Sri Subash Ghadai, Sweeper.

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2. Sri Reba Ghadai, Sweeper.

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3. Sri Uttam Chandra Mallick, Disinfection of wells.

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4. Sri Bikram Parida, Homeopathic Asst.

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Copy to all concerned for information and necessary action.

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Sd/-

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Executive Officer, Paradeep N.A.C.”

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2.1. One sanctioned post of Homoeopathic Assistant with pay scale of Rs.825/- — Rs.1,200/- was created and communicated vide Letter dated 08.03.2000 of the Housing and Urban Development Department.

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2.2. After rendering service for more than 15 years when the case of the petitioner for regularization was not considered despite several representations being made, the petitioner filed writ petition, giving rise to registration of W.P.(C) No. 4802 of 2008, before this Court which came to be disposed of on 06.03.2019 with the following Order:

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“***

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In that view of the matter, since the petitioner is continuing against a sanctioned post of Homeopathy

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Assistant and completed 26 years of service and even though his appointment is irregular he should be regularized in service in view of the judgment of the apex Court in State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 and State of Karnataka and others Vrs. M.L. Keshari and others, 2010 (II) OLR (SC) 982.

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It is of relevance to note that in a similar case, in respect of Angul Municipality, this Court vide order dated 27.11.2014 in W.P.(C) No.26860 of 2013 directed the opposite parties to regularize the services of the petitioner therein in view of the judgments of the apex Court in Umadevi (supra) and M.L. Keshari (supra). Against the said order dated 27.11.2014 the State of Odisha, as well as Angul Municipality preferred W.A. No.407 of 2015, which was dismissed on 19.01.2016. Against the order dated 19.01.2016 passed in W.A. No.407 of 2015, the State as well as Angul Municipality filed S.L.P. before the apex Court and by a common order dated 13.05.2016, the S.L.P. was dismissed. the State Consequentially, authorities issued Office Order dated 06.06.2016 for regularizing the petitioner in the said writ application. Furthermore, in W.P.(C) No.10100 of 2010 filed by Dhruba Charan Nayak of Paradeep Municipality this Court passed similar Order on 07.07.2017 and pursuant thereto the benefit has already been extended to the petitioner therein.

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In view of such position, the opposite parties are directed to regularize the service of the petitioner and grant all consequential benefits as due and admissible to him in accordance with law within a period of three months from the date of production of a certified copy of this order.

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With the aforesaid observation and direction, the writ petition is allowed.”

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2.3. Non-compliance of said Order of this Court, compelled the petitioner to lodge contempt application, being CONTC No.1374 of 2020, which got disposed of on 08.06.2020 with extension of period stipulated in Order dated 06.03.2019. Still not complied, another contempt petition, being CONTC No.3874 of 2020, was moved which resulted in further direction vide Order dated 21.10.2020 by extension of further period of fifteen days. The opposite parties remained adamant still, on account of which notice was issued to the contemnors by Order dated 05.12.2020 directing them to appear in person on 05.01.2021.

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2.4. Consequently, the Director of Municipal Administration, Housing and Urban Development Department issued Letter bearing No.20531-HUD-MUN-OP-55/2008/ H&UD, 31.12.2020, which runs as follows:

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“Government of Odisha

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Housing and Urban Development Department

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No.HUD-MUN-OP-55/2008—20531/H&U.D., BBSR dated 31.12.2020.

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From

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Sri Sangramjit Nayak, I.A.S. Director, Municipal Administration H&UD Department

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To

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The Executive Officer, Paradeep Municipality

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Sub: W.P.(C) No.4802 of 2008 filed by Bikram Parida Vrs. State of Odisha and others.

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Sir,

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I am directed to intimate that in pursuance of Order No.4 dated 06.03.2019 of the Hon’ble High Court, Odisha in W.P.(C) No.4802 of 2008 filed by Bikram Parida Vrs. State of Odisha and others on the subject noted above Government have been pleased to allow you to regularise the service of Sri Bikram parida, who is now working as Homeopathy Assistant in Paradeep Municipality under work charged establishment with effect from 06.03.2019 and pay all consequential benefits as due and admissible to him under intimation to this Department.

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Yours faithfully, Sd/-

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Director, Municipal Administration.”

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2.5. The petitioner appraised the authority concerned for correction of date of effect of regularisation by filing representation dated 03.02.2021. As no fruit yielded, aggrieved by inaction on the part of the opposite parties to appropriately correct the effective date of regularisation, i.e., 06.03.2019, which is the date of disposal of writ petition, the petitioner preferred to move this Court by way of filing writ petition, registered as W.P.(C) No.18702 of 2021. Said writ petition resulted in following direction vide Order dated 09.07.2021:

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“Considering the limited grievance of the petitioner, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing the opposite party No.2 to consider the representation filed by the petitioner vide Annexure-8 and pass appropriate order in

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accordance with law within a period of three months from the date of production of authenticated/certified copy of this order.”

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2.6. In pursuance of such direction, the Director, Municipal Administration- cum-Ex-officio Additional Secretary to the Government of Odisha in Housing and Urban Development Department has passed the following Order on 06.09.2021:

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“***

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The representation dated 03.02.2021 of the petitioner Sri Bikram Parida is taken up for consideration in terms of the order dtd.09.07.2021 of the Hon’ble High Court of Orissa passed in W.P.(C) No.18702 of 2021 and it is observed that there is no sufficient reason given by the petitioner to justify his claim for ante-dating the date of his regularisation with effect from the date of joining on 13.11.1992 or from the date of sanction of the post on 08.03.2000. The regularisation of the service was rightly given with effect from the date of the order of the Hon’ble High Court, i.e., 06.03.2019.

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In that view of the matter, the representation of the petitioner Sri Bikram Parida dt.03.02.2021 under Annexure-8 to the writ petition is considered and accordingly rejected being devoid of any merit.

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Copy of the order be sent to all concerned.”

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2.7. Dissatisfied thereby, the petitioner has again travelled to this Court assailing said Order dated 06.09.2021 (Annexure-10) in the present writ petition with a prayer

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to direct the authorities concerned to antedate his date of effect in service.

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Counter affidavit of the opposite party Nos.1 and 2:

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3. Objecting to the contents and averments contained in the writ petition and justifying rejection of the representation dated 03.02.2021 to change the effective date of regularisation, counter affidavit has been sworn to by affirming that the Order impugned by the petitioner in the writ petition is the Order dated 06.09.2021 vide Annexure-10 by which the claim of the petitioner for antedating the date of his regularization of service to 13.11.1992, i.e ., the date of his joining in the service or, in the alternative, to 08.03.2000, i.e ., the date of sanction of post instead of 06.03.2019. The aforesaid claim led by the petitioner has not been supported by any legally tenable ground, the writ petition is liable to be dismissed in limine .

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3.1. Asserting further, it is stated that the services of the petitioner has rightly been regularized with effect from 06.03.2019 based on disposal of and direction contained in W.P.(C) No.4802 of 2008. Despite regularization of the service of the petitioner with effect from 06.03.2019 being made in compliance of direction of this Court, he has made representation dated 03.02.2021 with such unsustainable claim and thereafter filed W.P.(C) No.l8702 of 2021, which was disposed of by this Court

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on 09.07.2021 directing the authority concerned to consider his representation. In obedience to the aforesaid Order dated 09.07.2021 of this Court passed in W.P.(C) No. 18702 of 2021 the representation of the petitioner dated 03.02.2021 was duly considered by the competent authority and having found no viable reason or justification to antedate the regularization of service of the petitioner either to 13.11.1992 (date of initial engagement on daily wage basis) or 08.03.2020 (date of sanction of the post) as claimed by him and accordingly rejected his claim.

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3.2. The engagement of the petitioner being made temporary pursuant to Notified Area Council Resolution dated 20.11.2005, there is no material to show that a list of NMRs/DLRs/Job-Contract workers were continuing under Paradeep Notified Area Council so as to attract the terms of Government of Odisha in Finance Department Resolution dated 15.05.1997. It is asserted that the demands submitted by the Employees’ Union and Municipal Employees’ Confederation do not involve the post of the petitioner under temporary category. As the opposite party No.l vide Order dated 08.03.2000 sanctioned the post of Homoeopathic Assistant for Paradeep Notified Area Council, it depicts that prior thereto the petitioner, being engaged pursuant to Office Order dated 13.11.1992 of the Executive Officer, Paradeep Notified Area Council, cannot be said to have

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been engaged against sanctioned post and as such, his claim for antedating his regularisation with effect from 13.11.1992 is unsustainable in the eye of law, being engaged against the sanctioned post subsequent thereto.

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3.3. It is further clarified that while being engaged on ad hoc (temporary) basis, the petitioner approached this Court in W.P.(C) No.4802 of 2008 for regularization of his services posing as if he was under DLR. Said writ petition got disposed of on 06.03.2019 with a direction to the opposite parties to regularize the service of the petitioner and in terms of the aforesaid Order dated 06.03.2019, the service of the petitioner was rightly regularized with effect from 06.03.2019. The date of regularization of the petitioner cannot be antedated to give effect from 13.11.1992 or in the alternative from 08.03.2000 in view of the fact that he was not an employee under DLR/NMR/Job-Contract category. That was the reason for which representation dated 03.02.2021 could not be considered in affirmative. The petitioner filed W.P.(C) No. 18702 of 2021 for a direction to the opposite parties to antedate his date of regularization to 13.11.1992 or 08.03.2000 instead of 06.03.2019.

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Hearing:

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4. Pleadings being completed and exchanged amongst the counsel for respective parties, on consent of counsel for

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the parties, this matter is taken up for final hearing. Accordingly, heard Sri Niranjan Lenka, learned Advocate for the petitioner; Sri Arnav Behera, learned Additional Standing Counsel for the opposite party Nos.1 and 2 on 23.08.2024; and Sri Pabitra Kumar Nayak, learned Advocate appearing for the opposite party No.3 and the matter stood reserved for preparation and delivery of Judgment.

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Rival contentions and submissions:

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5. Sri Niranjan Lenka, learned Advocate advanced arguments by submitting that the authorities, though have complied with said direction after disposal of contempt(s) by granting extension of time, failed to appreciate that since the petitioner has been engaged since 13.11.1992, the regularisation of service as Homoeopathic Assistant should have been made effective from this date or at the least with effect from the date when the post got sanctioned by the Housing and Urban Development Department, i.e., 08.03.2000. He made valiant attempt to contend that at any rate the said date of effect could not be from the date of Order passed by this Court in W.P.(C) No.4802 of 2008, i.e., 06.03.2019.

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5.1. It is submitted by Sri Niranjan Lenka, learned Advocate that the opposite party No.1-Director of Municipal Administration vide Letter dated 31.12.2020 addressing

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the opposite party No.2-Executive Officer, Paradeep Municipality (erstwhile Paradeep Notified Area Council) communicated that “in pursuance of Order No.4, dated 06.03.2019 of the Hon’ble High Court of Orissa in W.P.(C) No.4802 of 2008 filed by Bikram Parida Vrs. State of Odisha and Others on the subject noted above Government have been pleased to allow you to regularise the service of Sri Bikram Parida, who is now working as Homoeopathic Assistant in Paradeep Municipality under work charged establishment, with effect from 06.03.2019 and pay all consequential benefits as due and admissible to him under intimation to this Department”. This gave rise to issue of Office Order No.01, dated 01.01.2021 by the opposite party No.2 indicating that “In pursuance of Government in H&UD Department, Government of Odisha, Bhubaneswar Order No.HUD-MUN-OP-55/2008/20531/H&UD, Bhubaneswar, dated 31.12.2020 and Order No.04, dated 06.03.2019 of Hon’ble High Court of Orissa in W.P.(C) No.4802 of 2008, the service of Sri Bikram Parida, Homoeopathic Assistant, Paradeep Municipality is hereby regularised with effect from 06.03.2019 in the scale of pay Rs.5,200/- — Rs.20,200/- with grade pay Rs.1,800/- under Odisha Revised Scale of Pay Rules, 2008 and with other allowances admissible from time to time”.

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5.2. The learned counsel strenuously contested that the effective date of regularisation could not have been 06.03.2019, but should have been from the date of initial engagement or at the least it ought to be from the date when the post was sanctioned. Having placed reliance on Annexures-11 and 12 enclosed to rejoinder affidavit, he submitted that the opposite party No.2 clearly admitted that the petitioner was engaged as DLR on 02.12.1992 and subsequently engaged as ad hoc Homoeopathic Assistant vide Office Order No.703, dated 15.03.1996 for six months and up to May, 1997 and thereafter “the Government in Housing and Urban Development Department regularised the DLR Sri Bikram Parida as Work-Charged vide Letter No.24822, dated 05.08.2013 and engaged as In-charge Homoeopathic Assistant vide Letter No.6545, dated 07.11.2013”. In the Office Order No.6545, dated 07.11.2013 it has been clearly spelt out as follows:

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“In pursuance of Government in H&UD Department Order No.24822/HUD, dated 05.08.2013 Sri Bikram Parida who is working as NMR/DLR basis and engaged prior to 12.04.1993 is hereby brought over to the work-charged established in the post of Homoeopathic Assistant in the scale of pay Rs.4,440/- — Rs.14,680/- with Grade Pay Rs.1,300/- with effect from 21.08.2013 he actually joins in the post under Paradeep Municipality. The admissibility of D.A. will be applicable as per Finance Department Office Memorandum No.35653/F., dated 16.10.2012. The service conditions shall be regulated as

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per stipulation of Odisha Work Charged Employees’ Instructions, 1974.”

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5.3. It is submitted by Sri Niranjan Lenka, learned counsel that the petitioner during the pendency of the writ petition has got retired on 30.06.2022 on attaining the age of superannuation. He urged that if the regularisation in service would be antedated, the petitioner would be entitled to avail the benefit of retirement benefits including pension as per the Odisha Civil Services (Pension) Rules, 1992 as it existed prior to its amendment with effect from 01.01.2005. It is submitted that pension being not bounty, the provisions are required to be given liberal construction and the petitioner could not be deprived of the pensionable service, which could be permissible to him if his period of DLR service is recognized as qualifying service. In such event of antedating the effective date of regularisation, the benefit of the service rendered as a DLR employee could be counted for determining the pensionary benefits to the petitioner.

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5.4. He has submitted that a coordinate Bench of this Court in the case of Sunirmal Mukherjee Vrs. State of Odisha, W.P.(C) No.19169 of 2012 & W.P.(C) No.28001 of 2019, vide Judgment dated 26.09.2023 [2023 SCC OnLine Ori 5772], placing reliance on Sheo Narain Nagar Vrs. State of Uttar Pradesh, (2018) 13 SCC 432 , directed the opposite parties to regularize the services of the

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petitioner therein from the date of sanction of the post by the Government with all consequential service and financial benefits adjusting the amount already received by him towards consolidated remuneration and as a temporary status conferred employee. On parity, the petitioner is entitled to be extended with similar benefit.

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6. Sri Arnav Behera, learned Additional Standing Counsel referring to reply affidavit filed on behalf of the opposite party Nos.1 and 2 to the rejoinder filed by the petitioner submitted that the petitioner misled this Court by not bringing appropriate facts on record, rather these opposite parties have placed on record Annexure-A/2 (enclosed to counter affidavit) to demonstrate that in pursuance of Council Resolution No.3, dated 29.11.1995, the petitioner is engaged on the post of Homoeopathic Assistant for a period of six months from the date of issue of Order No.703—XXX-W-16/1996, dated 15.03.1996 on ad hoc basis and such engagement was “purely temporary and terminable at any time”. The contention of the petitioner in the rejoinder affidavit that his case squarely falls within the scope the Finance Department Resolution dated 15.05.1997, i.e., “Scheme for absorption of the NMR/DLR/Job-Contract Wokers under Regular Establishment” is without substance. The petitioner having accepted such temporary engagement on ad hoc basis from the date of issue of Order dated 15.03.1996, could not claim to be regularised in service

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in the post of Homoeopathic Assistant with effect from 02.12.1992, i.e., the period of service engaged in Daily Labour Roll. Furthermore, the aforesaid Scheme for absorption is limited to the engagees on DLR basis prior to 12.04.1993. Since the petitioner has accepted the engagement on ad hoc (temporary) basis, he could not claim continuity in service as DLR employee to claim benefit under said Scheme for absorption.

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6.1. With respect to regularisation of service of the petitioner with effect from 06.03.2019, it is submitted that said date has rational nexus with the Order of this Court passed in W.P.(C) No.4802 of 2008. It is submitted that it is the employer who is at liberty to consider the date from which regularisation is required to be given. Such a consideration requires very many factors, like nature of work, number of posts lying vacant, the financial condition of the employer, the additional financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made, etc. In this respect he placed heavy reliance on a coordinate Bench decision rendered in the case of Jawaharlal Mohanta Vrs. State of Odisha, W.P.(C) No.20977 of 2010, vide Judgment dated 09.05.2024 [2024 SCC OnLine Ori 1496], wherein later Judgment dated 07.03.2022 of the Hon’ble Supreme Court of India in the case of Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer & Anr. Vrs. Chiggan Lal

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& Ors., 2022 LiveLaw (SC) 296 = 2022 SCC OnLine SC 1351 has been followed.

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6.2. Sri Arnav Behera, learned Additional Standing Counsel went on to submit that there is no conflict between Jawaharlal Mohanta (supra) [Judgment dated 09.05.2024] and Sunirmal Mukherjee (supra) [Judgment dated 26.09.2024] , as the prayers in both the cases were different and distinct. By referring to Secundrabad Club Vrs. CIT, 2023 LiveLaw (SC) 660 = (2023) 12 SCR 979 he submitted that a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement; the decision is an authority for what is specifically decides and not what can logically be deduced therefrom. He further went on to submit that since specific issue whether regularisation of service can be antedated was not subject-matter of discussion in Sunirmal Mukherjee (supra) ; but the case of Jawaharlal Mohanta (supra) was on the issue of antedating the effective date of regularisation. Hence, he insisted for dismissal of the instant writ petition following Jawaharlal Mohanta (supra) wherein not only specific issue of antedating was involved but also this Court relied on the later decision of Hon’ble Supreme Court of India in Managing Director,

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Ajmer Vidhyut Vitran Nigam Ltd., Ajmer Vrs. Chiggan Lal, 2022 LiveLaw (SC) 296 = 2022 SCC OnLine SC 1351.

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6.3. The learned Additional Standing Counsel, therefore, made request to dismiss the instant writ petition being devoid of merit.

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7. The learned counsel appearing for Rourkela Municipal Corporation-opposite party No.3 referring to counter affidavit would submit that the petitioner had joined as Homoeopathic Assistant in the Homoeopathy Dispensary of Rourkela Municipal Corporation on 03.06.2021 and got retired from service on 30.06.2022 on attaining age of superannuation. Vide Letter No.20532-HUD-MUN-OP55/2008/H&UD, dated 31.12.2020 of the Director of Municipal Administration the Executive Officer of Paradeep Municipality was instructed to regularise the service of the petitioner in connection with the Order dated 06.03.2019 of this Court in W.P.(C) No.4802 of 2008, the Office of Rourkela Municipal Corporation has limited scope to consider the case of the petitioner for antedating the effective date of regularisation as set out in the present writ petition.

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Analysis and discussion:

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8. On the pleadings and the arguments it boils down to the point at issue whether the Order dated 06.09.2021 of the Director, Municipal Administration & Ex-officio

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Additional Secretary to Government of Odisha in Housing and Urban Development Department is tenable in the eye of law, whereby request of antedating the effective date of regularisation of service has been refused to the petitioner and thereby, the representation dated 03.02.2021 pursuant to direction of this Court in the Order dated 09.07.2021 passed in W.P.(C) No.18702 of 2021 has been rejected, which has given rise to filing of this writ petition.

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8.1. Perusal of record reveals that though the petitioner was engaged on daily wage basis (DLR) by Office Order dated 13.11.1992 of the Executive Officer, Paradeep Notified Area Council (now Paradeep Municipality), which is not arrayed as party to the present proceeding, he has without any demur accepted to work as Homoeopathic Assistant on ad hoc basis for a period of six months and the engagement was “purely temporary” as per Office Order No.703—XXX-W-16/1996, dated 15.03.1996 issued by the Chairperson, Paradeep Notified Area Council. In the Memo attached thereto clearly stipulated “copy to person concerned for information and necessary action” with instruction to join in the post of Homoeopathic Assistant within seven days from the date of receipt of the said Order. Thus, it is translucent from said document that such an engagement is a fresh one, which fact was silent in the writ petition. The learned Additional Standing Counsel is correct in arguing that

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there was suppression of material fact on the part of the petitioner and he has not approached this Court with clean hands, clear heart and unbiased mind. In such view of the matter, the claim of the petitioner based on the “Scheme for absorption of the NMR/DLR/JobContract Workers under Regular Establishment” as envisaged in the Resolution dated 15.05.1997 is liable to be refused, inasmuch as the said Resolution is a Scheme for regularisation of NMR/DLR/Job-Contract Workers who were engaged prior to 12.04.1993. It seems, only to claim relief of regularisation with effect from 13.11.1992, as if he has been continuing since 1992 (posing to be prior to 12.04.1997) on daily wage basis (DLR) so as to make his case fall within the ken of terms of said Resolution dated 15.05.1997, such a vital fact has been concealed from being placed by way of writ petition filed on 29.10.2021. Hence, the petitioner is not entitled to equity.

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8.2. At this juncture it may be apt to refer to the oft-quoted maxim fraus et jus nunquam co-habitant which means ‘fraud and justice never dwell together’. This is a pristine maxim oft-quoted in the judgments of the High Courts and the Supreme Court of this Country. Regard may be had to following observation of the Hon’ble Supreme Court of India in Badami Vrs. Bhali, (2012) 6 SCR 75 = 2012 INSC 245 , to conceive of the consequence of withholding vital document:

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“In the said case [S.P. Chengalvaraya Naidu Vrs. Jagannath, AIR 1994 SC 853] it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party. ”

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8.3. In the case of Union of India Vrs. M. Bhaskaran, (1995) Supp.(4) SCR 526, the Supreme Court has observed that if by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of law as the employment secured by fraud renders it voidable at the option of the employer. ‘Fraud’ means an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. Further, the expression ‘fraud’ involves two elements, deceit and injury to the person deceived. Misrepresentation itself amounts to fraud. A fraudulent misrepresentation is called deceit. It is a fraud in law, if a party makes representation, which he knows to be false. However, fraud is proved only when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless

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whether it be true or false. Reference in this regard may also be had to Ram Chandra Singh Vrs. Savitri Devi, (2003) 8 SCC 319 .

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8.4. Thus, by not bringing to the notice of this Court regarding such engagement pursuant to Office Order dated 15.03.1996, vide Annexure-A/1 to the counter affidavit, there has been suppression of material fact on the part of the petitioner. Such a material fact having bearing on the adjudication of the lis has been pointed out by the learned Additional Standing Counsel by way of counter affidavit to demonstrate that the nature of engagement of the petitioner got changed when he joined as Homoeopathic Assistant on ad hoc basis for a period of six months. This being fresh engagement and with eyes wide open he accepted such engagement on ad hoc basis it is mischievous on his part to say that he could claim relief in terms of Resolution dated 15.05.1997. This Court finds force in the argument of the learned Additional Standing Counsel.

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9. This Court disposed of W.P.(C) No.4802 of 2008 by Order dated 06.03.2019 observing that “since the petitioner is continuing against a sanctioned post of Homoeopathy Assistant and completed 26 years of service (without taking note of Office Order dated 15.03.1996, being not brought to the notice of Court) and even though its appointment is irregular he should be regularised in

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service in view of the Judgments of Apex Court in Umadevi, (supra) [(2006) 4 SCC 1] and M.L. Kesari, (supra) [2010 (II) OLR (SC) 982]”, and directed the opposite parties “to regularise the service of the petitioner and grant all consequential benefits as due and admissible to him in accordance with law”.

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9.1. With the aforesaid backdrop, the petitioner having accepted said Order allowed the Director, Municipal Administration and Ex-officio Additional Secretary to Government-opposite party No.1 to take a decision who has directed the Appointing Authority-Paradeep Municipality to accord regularisation of service of the petitioner with effect from 06.03.2019.

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9.2. Record does not transpire that the petitioner at any point of time in earlier rounds of cases has brought to the notice of this Court that he accepted and joined in the post of Homoeopathic Assistant on ad hoc (temporary) basis pursuant to the Office Order dated 15.03.1996. In the opinion of this Court, therefore, the petitioner having accepted such position, he ceases to be a DLR employee. However, in compliance of this Court’s direction in Order dated 06.03.2019 in W.P.(C) No.4802 of 2008 the opposite parties have regularised his service with effect from 06.03.2019.

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9.3. It may be noteworthy to refer to Annexure-11 enclosed to writ petition by way of rejoinder of the petitioner filed on

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20.04.2022. It is manifest that the petitioner by concealing the fact of having joined the post of Homoeopathic Assistant on ad hoc (temporary) basis in pursuance of Office Order dated 15.03.1996, led this Court to believe that he continued in the said post on daily wage as DLR employee since 1992. The reason as to why the petitioner chose not to implead Paradeep Municipality as a necessary party to this proceeding.

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9.4. This apart, the Executive Officer, Paradeep Municipality vide Office Order No.6545, dated 07.11.2013 has stated that “Sri Bikram Parida who is working as NMR/DLR basis and engaged prior to 12.04.1993 is hereby brought over to the work-charged establishment in the post of Homoeopathic Assistant in the scale of pay Rs.4,440/— Rs.14,680/- with Grade Pay Rs.1,300/- with effect from 21.08.2013 he actually joins in the post under Paradeep Municipality”. Nothing is brought on record to show that said Office Order dated 07.11.2013 has ever been challenged by the petitioner. Therefore, the terms of said Office Order is binding on the petitioner. Careful reading of said Office Order reveals that it is clarified therein that “the service conditions shall be regulated as per stipulation of Odisha Work-Charged Employees’ Instructions, 1974”.

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9.5. The Odisha Work-Charged Employees’ Instructions, 1974, vide Government of Odisha in Political & Services

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Department Resolution, dated 18.06.1974 (published in the Odisha Gazette on 16.08.1974), defines the term “Work-Charged Establishment” in Paragraph 2(q) to mean an establishment where the pay and allowances of the employees are charged to the item of work for which they are employed. It inter alia provides as follows:

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“3. Tenure and condition of appointment.—

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(1) Work-charged Establishment shall consist of employees of two categories, namely:

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(1) those employed for actual execution of work and

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(2) those for general supervision of a specific work or of sub-works of a specific project or subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work.

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When employees borne on regular establishment are employed on work of this nature, their pay and allowances should be charged direct to the work. If the entertainment of work-charged establishment is contemplated for supervision in connection with any work. The cost should be invariably shown as a separate sub head of the estimate for that work. Pay and allowances of those employed for the actual execution of work should be debited to the concerned item of work.

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(2) The employment of a person appointed under the work-charged establishment for a particular work will cease on completion of the work or it can be

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terminated earlier at any time without assigning any reason.

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(3) The whole time of a work-charged employee is at the disposal of Government and no over time allowance can be claimed on any account.

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***

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5. Pay and increment.—

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(1) All employees shall be appointed on the scale of pay as may be prescribed for the post unless otherwise decided by Government:

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Provided that in the case of skilled or experienced employees, who was drawing pay at rate higher than the minimum on the date of appointment in any Government, Semi-Government or Public Sector Undertakings or Corporations, the Head of the Department may fix the initial pay of the employee at a higher stage in the time scale by allowing advance increments up to two in the maximum:

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Provided further that the Head of the Department is satisfied that more than two such advance increments are justified he shall obtain prior sanction of Government in the administrative Department.

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(2) Increment in the time scale of pay shall be drawn subject to satisfactory service.

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(3) Service in any post carrying higher scale of pay and leave other than extraordinary leave will count for increment in the post held by the incumbent.

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***

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11. Contribution to Provident Fund.—

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All employees covered under the Employees Provident Fund Scheme shall contribute regularly to the Employees Provident Fund after completing one year of service. Such of the employees who are not covered by the Employees, Provident Fund Scheme shall contribute regularly to the Contributory Provident Fund after completion of one year of service.

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12. Maintenance of Service Rolls.—

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Service Rolls of the employees shall be maintained in the forms as will be prescribed.

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13. Free medical aid shall be given to all employees who may also be given reimbursement of the cost of medicines to the extent to be determined by the appointing authority in individual case.

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14. Retirement.—

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The work-charged employees shall ordinarily be retained in service up to the age of 58 years:

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Provided that a Grade–D employee shall or an artisan workman who is working in the workcharged establishment but he is at par with Grade– D employee shall retire on attaining the age of 60 years.

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Provided further that the work-charged employees can be required by the appointing authority in public interest to retire at any time before attaining the age of superannuation on a month’s notice or a month’s pay in lieu thereof.

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15. The employees shall be allowed gratuity at the rate of half a month’s pay for every completed year of service subject to the maximum of 15 months’ pay on retirement, invalidation except where it is caused by intemperance and death while in service subject to the condition that this concession shall be allowed only to the employees rendered continuous service for a minimum period of 10 years. Pay for this purpose shall be the pay last drawn:

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Provided that employees whose service conditions are governed by special enactment or labour laws would be entitled to gratuity as provided under such special enactment or laws, and not under the above instructions.

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Provided further that an employee who after having rendered continuous service for a minimum period of 10 is absorbed under the years regular establishment, shall be entitled to gratuity admissible under these instructions for the period of service under the work-charged establishment, if the appointing authority gives a certificate that the employee would have continued to serve in the work-charged establishment on or after 19-8-1974 but for his absorption in the regular establishment. In such cases, the gratuity admissible will be paid to the employee at the time of retirement, invalidation or death while in service along with pension and or gratuity for the period of service under the regular establishment.”

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9.6. By virtue of Instruction Letter No. 12465/Gen., dated 25.04.1989 of the General Administration Department it has been clarified as follows:

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“With reference to your Letter No. Pen. 9 – Irrigation – 338, dated 25th November, 1988 on the subject noted above, I am directed to say that the age of superannuation of a particular post is always determined according to classification of posts under Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. This classification has been made in consideration of the job prescribed for the post. The scale of pay of the post held by an employee should not be taken into account in the context of the age of his superannuation. It appears from this Department notification No. 13973, dated 27.07.1968 that the post of Work Sarkar and Amin have been classified as Class III posts whereas the post of Patrol has been classified as Class IV. Hence, the age of superannuation of the post of Patrol should be 60 years according to rule. But in cases of Work Sarkar and Amin, the age of superannuation should be 58 years.

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It is further clarified that the age of superannuation of an employee first appointed as Work-charged staff and subsequently brought over to the regular establishment prior to his retirement shall be at par with that of the employee already appointed to work under regular establishment.

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This is issued in consultation with Finance Department”

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9.7. Such being the Instructions, 1974 as clarified in the Letter dated 25.04.1989 referred to above, there is no ambiguity that the Work-Charged employees stand on a different footing than the NMR/DLR/Job-Contract Workers. From the above it is clear that having accepted the position of Work-Charged employee in terms of Office Order dated 07.11.2013, the petitioner relying on

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Resolution dated 15.05.1997 could not be allowed to claim that having worked on daily wage basis (DLR) since 1992, he would be entitled to regularization of service with effect from 02.12.1992, i.e., date of engagement in DLR or 15.03.1996, i.e., date of engagement as ad hoc (temporary) Homoeopathic Assistant. Since he has accepted his position with effect from 07.11.2013 as Work-Charged employee, the claim of the petitioner for antedating his regularization of service instead of 06.03.2019 is misnomer and misleading. No irrationality on the part of the opposite parties has been found in fixing said date as the date for regularization of service.

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9.8. The precept of “regularisation” as given in B.N. Nagarajan Vrs. State of Karnataka, (1979) 4 SCC 507 makes it clear that the words ‘regular’ or ‘regularization’ do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.

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9.9. With such express opinion of the Hon’ble Supreme Court of India, the writ petition is liable to be dismissed taking into conspectus of factual and legal aspects discussed above.

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10. So far as conflict between two coordinate Single Bench decisions are concerned, meticulous reading of both the cases seems to be distinguishable on facts and there is no apparent contradiction between the two Judgments.

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10.1. As seemly pointed out by Sri Arnav Behera, learned Additional Standing Counsel, this Court finds that prayers in both the cases are different and distinct.

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10.2. In Sunirmal Mukherjee’ case , 2023 SCC OnLine Ori 5772 the prayers run thus:

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W.P.(C) No.19169 of 2012:

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“The petitioner therefore, most humbly prays that your Lordship may be graciously pleased to Admit this writ application, issue notice to the opposite parties, and upon hearing, be pleased to issue writ of mandamus directing the opposite parties to regularise the services of the petitioner with all service benefits for which the petitioner would be lawfully entitled consequent on such regularization, and pass any such order(s), issue direction(s), or writ(s) as would be deemed proper. And for which act of kindness, the petitioner as in duty bound, shall ever pray.”

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W.P.(C) No. 28001 of 2019:

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“The petitioner therefore prays that this Hon’ble Court may graciously be pleased to admit this Writ Petition, issue Rule NISI in the nature of Writ of Mandamus or any other writ(s) as this Hon’ble Court deems fit and proper by calling upon the opposite parties to show cause as to why the impugned letter dtd.23.08.2018 and office order

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dtd.29.11.2018 passed by the opposite parties under annexures-5 & 7 shall not be quashed and if the opposite parties fail to show cause or show insufficient cause, the Rule be made absolute; And the impugned letter dtd.23.08.2018 and Office Order dtd.29.11.2018 passed by the opposite party No.3 under annexures-5 & 7 may kindly be quashed and the opposite parties be directed to reassess the financial benefit as admissible to the petitioner in the post of Peon by virtue of G.O. No.26319/HE dtd.17.08.2005 till the date of retirement of the petitioner; And may pass any such other order/orders as this Hon’ble Court deems fit and proper;”

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10.3. In Jawaharlal Mohanta’s case , 2024 SCC OnLine Ori 1496 the prayer(s) of the petitioner was to the following effect:

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“Under the circumstances, it is humbly therefore prayed that this Hon’ble Court may graciously be pleased to issue a writ in the nature of mandamus or any other appropriate writ/writs by directing the opp.parties to grant the regular scale of pay of the petitioner w.e.f. the date of his initial appointment i.e. with effect from 29.02.1995. And further be pleased to modify the order dated 15.01.2011 and 24.01.2011 under Annexure16 and 17 to the extent that the benefit of regular scale of pay be given to the petitioner w.e.f. the initial date of appointment i.e. 29.07.1995; And further be pleased to direct the opposite parties to grant all consequential service benefits.”

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10.4. Further scrutiny of these two judgments reveals that while in the case of Sunirmal Mukherjee (supra), Sheo Narain Nagar (supra) has been referred to, which is a

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case for conferring temporary status and said case does not relate to Work-Charged employee. The case of Sunirmal Mukherjee (supra) is to regularise the service and while disposing of the writ petition this Court directed the opposite parties to regularise the service from the date of sanction of the post by the Government. Nevertheless, in the case of Jawaharlal Mohanta (supra) the issue whether there is scope for direction to antedate the effective date fixed by the Government while regularising the service did fall for consideration. In the said context, this Court following Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer Vrs. Chiggan Lal, 2022 LiveLaw (SC) 296 = 2022 SCC OnLine SC 1351 held that the claim of the petitioner for regularisation of his service from the date of his initial appointment is without any basis.

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10.5. It may further be noticed that the decision rendered in Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer Vrs. Chiggan Lal, 2022 LiveLaw (SC) 296 = 2022 SCC OnLine SC 1351 was not brought to the notice of this Court while adjudicating the issue raised in Sunirmal Mukherjee (supra). While Sheo Narain (supra) is a case of 2018, Managing Director, Ajmer Vidhyut Vitran Nigam Ltd. (supra) being of the year 2022, which directly dealt with the point at issue, this Court prefers to apply the ratio of decision laid in the case of Jawaharlal Mohanta (supra) on the following principles as

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propounded by the Hon’ble Supreme Court of India in the case of Secundrabad Club Vrs. CIT, 2023 LiveLaw (SC) 660 = (2023) 12 SCR 979:

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“16. The legal principles guiding the decision in a case is the basis for a binding precedent for a subsequent case, apart from being a decision which binds the parties to the case. Thus, the principle underlying the decision would be binding as a precedent for a subsequent case. Therefore, while applying a decision to a later case, the court dealing with it has to carefully ascertain the principle laid down in the previous decision. A decision in a case takes its flavour from the facts of the case and the question of law involved and decided. However, a decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141, vide State of Uttar Pradesh Vrs. Synthetics and Chemicals Ltd. (1991) 4 SCC 139. Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. All courts in India, therefore, are bound to follow the decisions of Supreme Court. This principle is an aspect of judicial discipline.

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17. If a decision is on the basis of reasons stated in the decision or judgment, only the ratio decidendi is binding. The ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case. It is the ratio decidendi which forms a precedent and not the final order in

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the judgment, vide Sanjay Singh Vrs. Uttar Pradesh Public Service Commission, Allahabad; (2007) 3 SCC 720. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent.

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18. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of daily affairs. Thus, what is binding in terms of Article 141 of the Constitution is the ratio of the judgment and as already noted, the ratio decidendi of a judgment is the reason assigned in support of the conclusion. The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter. The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter. Thus, an order made merely to dispose of the case cannot have the value or effect of a binding precedent.

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19. What is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance.

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20. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.

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21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute. This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally. Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what is specifically decides and not what can logically be deduced therefrom.

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22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.

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23. Another important principle to be borne in mind is that declaration of the law by the Supreme Court can

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be said to have been made only when it is contained in a speaking order, either expressly or by necessary implication and not by dismissal in limine. In the words of Mukherji, CJ, in DTC Vrs. DTC Mazdoor Congress Union, AIR 1991 SC 101, the expression ‘declared’ is wider than the words ‘found or made’. The latter expression involves the process, while the former expresses the result.”

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10.6. Fundamental to follow binding precedents on a question of law decided by coordinate Bench may be couched in the following words expressed by the Hon’ble Supreme Court of India in the case of Sandhya Educational Society Vrs. Union of India, (2014) 7 SCC 701 = 2013 SCC OnLine SC 290 :

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“In our considered opinion, judicial decorum and discipline is paramount and, therefore, a coordinate Bench has to respect the judgments and orders passed by another coordinate Bench and cannot on mere assumptions refer the matter for consideration by a larger Bench. In that view of the matter, keeping in view the well-settled legal position in the cases of Vinod Kapoor, (2012) 12 SCC 378 = AIR 2012 SC 3722, Suseel Finance & Leasing Co., (2004) 13 SCC 675 and M.N. Haider, (2004) 13 SCC 677, we dismiss this appeal as not maintainable.”

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10.7. It was pointed out in Shama Rao Vrs. Union Territory of Pondicherry, (1967) 20 STC 215 (SC) = AIR 1967 SC 1480:

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“It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.”

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10.8. A case to the point is Govindanaik G. Kalaghatigi Vrs. West Patent Press Co. Ltd., 1979 SCC OnLine Kar 56 = ILR 1979 Kar 1401 = AIR 1980 Kar 92, wherein it has been held as follows:

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“If two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a smaller Bench, the decision of the larger bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts. ”

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10.9. This Court to examine whether to follow the later decision of coordinate Bench in preference to the earlier one of the same strength, finds support of Full Bench decision of Andhra Pradesh High Court in the case of Ushodaya Enterprises Ltd. Vrs. Commissioner of Commercial Taxes, (1998) 111 STC 711 (AP) = 1998 SCC OnLine AP 920 = (1998) 3 ALD 478 (FB) = (1998) 3 ALT 96 (FB) , wherein the following observation (from STC ) has been made which would resolve the piquant situation is raised in the present case:

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“10. In this state of things, should we follow the decision in Sait Rikhaji case, (1992) 85 STC 1 (SC) merely because it is a later decision? ***

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11. In all these cases, it was held that in case of conflict between earlier and later decision of

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the Supreme Court rendered by benches consisting of equal number of Judges, the later decision should prevail. The view expressed by the majority of Judges in AIR 1980 Karnataka 92 (Full Bench) [Govindanaik G. Kalaghatigi Vrs. West Patent Press Co. Ltd.] was approved and followed by Allahabad and Gujarat High Courts in the decisions aforementioned. However, we must point out that there is a weighty dissenting opinion of Jagannatha Shetty, J. speaking for himself and Venkatesh, J. We quote the words of Shetty, J. who in turn cited a passage in English case with approval:

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‘But the difficulty may still arise for the High Court when confronted with two inconsistent decisions of the Supreme Court by Benches consisting of equal number of Judges. Both cannot be said to be binding on Courts. But the choice is still more difficult as there is no firm general rule on the principle of precedent. The learned Chief Justice has opined that in such a case, the later of the two decisions should be followed by the High Court and other Courts. This practice, according to us, is neither a rule of propriety nor a rule to promote justice. It may be a convenient rule to promote consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, we may as well ask the question, why not the High Court follow the former of the two rulings when both of them are of equal sanctity. Why alone the later carries the obligation and not the former? The adherence to one practice would be as good or as bad as adherence to the other.

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In our view, a conservative approach to any of these, may deny justice in a given case or series of cases

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and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent co-ordinate authorities, Key, J., in Miles Vrs. Jarvis, (1883) 24 Ch D 633 at p.636 said:

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‘*** The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.’

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Jessel M.R. in a like circumstance said in Baker Vrs. White, (1877) 5 Ch D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time.’

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12. We may also notice a Full Bench decision of the Punjab & Haryana High Court in Indo Swiss Time Limited Vrs. Umrao, AIR 1981 P&H 213, in which the majority Judges took the view similar to the one J. It was

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expressed by Jagannatha Shetty, observed:

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‘When judgments of the superior Court are of coequal Benches and therefore of matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. *** On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments

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of co-equal Benches of the superior Court are earlier or later is a consideration which appears to me as hardly relevant. ’

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13. Exhorting us to adopt the view taken by most of the High Courts and to give effect to the later decision of the Supreme Court in Sait Rikhaji case, (1992) 85 STC 1 (SC), the learned Counsel for the appellant, in an apparent bid to ward off the possible argument based on the principle of ‘per incuriam’ has relied on the following observations of the Allahabad Full Bench in Gopal Krishna Indley Vrs. 5^th Additional District Judge, Kanpur, AIR 1981 All 300:

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‘To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court cannot be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Misra Vrs. State of U.P., AIR 1980 SC 1762, Krishna Iyer, J., agreed with the following observations made in Salmond ‘Jurisprudence’ page 215 (11th Edition):

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‘A decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.’

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Pausing here for a moment, we may note that the above passage in Salmond’s ‘Jurisprudence’ was not quoted by Krishna Iyer, J. in the context of any argument of per incuriam. The question was whether the earlier decisions including the Full Bench decision in the famous Keshavananda Barathi’s case (1973) Supp. SCR 1 = AIR 1973 SC 1461

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requires reconsideration on the ostensible ground that certain aspects were not considered.’

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14. The Full Bench of Allahabad High Court [Gopal Krishna Indley Vrs. 5^th Additional District Judge, Kanpur, AIR 1981 All 300] then went to the extent of saying that the later decision has impliedly overruled the earlier one.

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15. The concept of ‘per incuriam’ which is allied to the doctrine of judicial precedents has been explained by Sahai, J. in State of U.P. Vrs. Synthetics and Chemicals Ltd., (1992) 87 STC 289 (SC) = (1991) 4 SCC 139 in the following words:

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‘ ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. [Young Vrs. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718]. Same has been accepted approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu Vrs. Rajdewan Dubey, (1962) 2 SCR 558 = AIR 1962 SC 83, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate Court is not binding.’

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16. In Punjab Land Development Corporation Vrs. Presiding Officer, Labour Court, (1990) 3 SCC 682, Saikia, J. speaking for the Constitution Bench

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explained the principle on similar lines as Halsbury stated. The learned Judge observed:

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‘In England a decision is said to be given ‘per incuriam’ when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the house of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords.’

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Earlier, it was observed:

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‘The latin expression ‘per incuriam’ means through inadvertence. A decision can be said generally to be given per incuriam when Court has acted in ignorance of previous decision of its own or when the High Court has acted in ignorance of a decision of this Court.’

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17. Though not relevant to the issue on hand, as a matter of clarification, we may add that a decision given in ignorance of the terms of a statute or of a rule having the force of a statute is also treated as given ‘per incuriam’ (vide the observation at paragraph 11 in Municipal Corporation, Delhi Vrs. Gurnam Kaur, AIR 1989 SC 38.”

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10.10. In the present context it may be apposite to have regard to what fell in State of Gujarat Vrs. Gordhandas Keshavji Gandhi, 1961 SCC OnLine Guj 15 = AIR 1962 Guj 128 :

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“The rule that a Court should follow the decision of another Court of co-ordinate Jurisdiction is subject

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however to several exceptions which have been dealt with in Salmond’s Juris prudence, 11^th Edn. at pages 199 to 217.

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1. A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reserved or overruled by a higher Court.

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2. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.

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3. A precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher Court.

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4. A Court is not bound by its own previous decisions that are in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later Court.

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Although the later Court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of its own the Court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later.

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5. Precedents sub silentio, are not regarded as authoritative. A decision passes sub silentio when

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the particular point of law involved in the decision is not perceived by the Court or present to its mind.

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6. Decisions of equally divided Courts are not considered binding.”

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10.11. It may not be out of place to have reference to Jayaswals NECO Ltd. Vrs. CCE , (2007) 13 SCC 807 = (2009) 20 VST 353 = 2006 SCC OnLine SC 100 wherein the following is the dicta of the Hon’ble Supreme Court of India:

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“ A Bench of coordinate jurisdiction must not disregard the decision of the same strength on its own on an identical question. The rationale of this rule is the need for consistency, certainty and predictability in the administration of justice. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency shake public confidence in the administration of justice. It is undoubtedly vital in the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in the earlier case. In such circumstances, it is reasonable and indeed efficacious to refer the case to a larger Bench.”

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10.12. Having discussed the distinguishing features in Sunirmal Mukherjee (supra) vis-à-vis Jawaharlal Mohanta (supra), both rendered by the coordinate Bench of this Court, and being abreast of principles of adopting preference of precedential value of the earlier and the

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later decisions of coordinate Bench, perceiving factual dissimilarity in which the decisions relied on by the counsel for both sides were rendered, this Court feels persuaded to apply the ratio of Judgment rendered in Jawaharlal Mohanta (supra), which discussed the point at issue involved in the instant case.

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10.13. Notwithstanding the above, regard being had to suppression of material fact by not placing on record the relevant document the petitioner sought to mislead this Court as if he has been continuing in the post of Homoeopathic Assistant since 1992 on daily wage basis under DLR. Besides this, cognizance of further fact is taken that the petitioner has accepted the position of Homoeopathic Assistant under Work-Charged Establishment vide Office Order dated 07.11.2013 (Annexure-11 enclosed to rejoinder affidavit) and such fact does emanate from Letter dated 31.12.2020 (Annexure-7 of the writ petition). To reiterate needless to say that the Instructions, 1974 read with clarification dated 25.04.1989 makes it clear that the service conditions of Work-Charged personnel and DLR engagees are different and distinct. Such being the position, the prayer of the petitioner to antedate the date of effect of regularisation of service of the petitioner is inexplicable and the relief claimed by the petitioner has rightly been refused vide Order dated 06.09.2021 passed by the Director, Municipal Administration & Ex-officio

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Additional Secretary to Government of Odisha in Housing and Urban Development Department.

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Conclusion:

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11. Having diligently considered the factual position as discussed in the foregoing paragraphs with reference to the legal aspects and for the reasons ascribed herein above, it is irresistible to hold that no flaw can be attributable to the Director, Municipal Administration & Ex-officio Additional Secretary to Government of Odisha in Housing and Urban Development Department in passing Order dated 06.09.2021 while disposing of the representation dated 03.02.2021 of the petitioner in pursuance of direction contained in Order dated 09.07.2021 passed in W.P.(C) No.18702 of 2021.

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12. Under the above premises, the writ petition deserves to be dismissed being devoid of merit and accordingly, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs.

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(MURAHARI SRI RAMAN) JUDGE

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High Court of Orissa, Cuttack The 27^th August, 2024// MRS/Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 27-Aug-2024 17:50:12

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Bikram Parida v. State of Odisha

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Bikram Parida v. State of Odisha

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