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2026 DAILYLAW 27150 (ORI)

Kalpataru Sethi v. State Of Odisha

2026-03-13

Biraja Prasanna Satapathy

body2026
JUDGMENT : Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. Since all these Writ Petitions have been filed inter alia with a prayer to direct the State-Opp. parties to release the unutilized leave salary on the face of pendency of the Departmental Proceeding/Criminal Proceeding, all the Writ Petitions were heard analogously and disposed of by the present common order. 4. Considering the claim and the submission that on the face of the pendency of departmental and/or Criminal or Vigilance Proceeding, similarly situated employees have been released with the benefit of unutilized salary on their retirement from service, this Court passed the following order on 18.12.2025: “1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. It is contended that on similar issue where the proceeding is pending benefit of unutilized leave salary has been released vide order dtd.03.07.2023. But on the ground of pendency of the proceeding against the Petitioner, the same benefit is not being extended. 4. Considering the submissions made, this Court directs learned Addl. Government Advocate for the State to obtain instruction as to whether benefit under Annexure-5 has been extended even though proceeding is pending against the person concerned. 5. As requested, list this matter in the week commencing 19th January, 2026. Free copy of this order be handed over to learned AGA for compliance.” 5. Pursuant to such order passed, learned Addl. Govt. Advocate produced the instruction so provided by the Department of Water Resources vide letter dt.16.01.2026. 5.1. Basing on the instruction, learned Addl. Govt. Advocate contended that, though it is not disputed that in some cases, on the face of pendency of Criminal Proceeding/Departmental Proceeding, the State authorities are releasing the unutilized leave salary in favour of the concerned employee on their retirement from service, but in some cases, taking into account the gravity of the charges and mis- appropriation amount involved, such prayer is being negatived. 5.2. It is accordingly contended that since in some of the cases the misappropriation amount is very high, and the changes are serious, the Departments of the State are not releasing the unutilized leave salary. 5.2. It is accordingly contended that since in some of the cases the misappropriation amount is very high, and the changes are serious, the Departments of the State are not releasing the unutilized leave salary. It is accordingly contended that no direction be issued, as prayed for, in the present batch of Writ Petitions, so far as release of unutilized leave salary is concerned, during pendency of Criminal/Departmental Proceeding. 6. Mr. R.N. Parija, learned counsel appearing in W.P.(C ) No.36169 of 2025 produced copy of 2(two) orders showing release of such unutilized leave salary, on the face of pendency of Disciplinary Proceeding/Criminal Proceeding, pursuant to the order passed by this Court in different Writ Petitions. (Copies of those orders produced in Court be kept on record). 7. Learned counsels appearing for the Petitioners contended that by taking unutilized leave salary as a retiral benefits, various departments of the State while in some cases are releasing the benefit of unutilized leave salary, but in some cases, they are taking a different view and not releasing the benefit only on the ground of pendency of Departmental and/or Criminal/Vigilance Proceeding. 7.1. It is contended that if pendency of a Departmental and/or Criminal/Vigilance Proceeding is a bar for such release of unutilized leave salary, gravity of the charges and/or misappropriation of high amount cannot be the basis for releasing and/or withholding the benefit and a uniform policy is required to be followed. It is also contended that Petitioners being similarly situated, they cannot be discriminated in view of the provisions contained under Article-14/16(1) of the Constitution of India and so also the decision in the case of Arvind Kumar Srivastav and C. Lalitha. 7.2. Hon’ble Apex Court in the case of State of Uttar Pradesh & Others Vs. Arvind Kumar Srivastav and Others in Para-13 & 22 of the said judgment has held as follows: “ 13. In State of Karnataka v. C. Lalitha [State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment : (SCC p. 756, para 29) “29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.” xxxx xxxx xxxx xxxxx 22. The legal principles which emerge from the reading of the aforesaid judgments cited both by the appellants as well as the respondents can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” “22 . Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons: “13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” 7.3. Hon’ble Apex Court in para 29 of the decision in the case of C. Lalitha has held as follows: “29. Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. Moreover, at the end of the day, the Respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be sub-served if she is allowed to continue in her post and direct the Appellant to consider her seniority in the Administrative Service in terms of the order of this Court dated 15th March, 1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner (Karnataka Administrative Service).” 7.4. It is accordingly contended that the ground on which Petitioners have been deprived to get the benefit of unutilized salary is not sustainable in the eye of law. 8. It is accordingly contended that the ground on which Petitioners have been deprived to get the benefit of unutilized salary is not sustainable in the eye of law. 8. Having heard learned counsel appearing for the Parties and considering the submission made, it is found that on the face of pendency of the Departmental Proceeding/Criminal Proceeding, State in some cases is releasing the benefit of unutilized leave salary on the retirement of an employee and in some cases, the benefit is not being extended. 8.1 . Placing reliance on the provisions contained under Article 14 and 16(1) of the Constitution of India and the decision in the case of Arvind Srivastav and C. Lalitha as cited supra, it is the view of this Court that no discrimination can be made in the matters of extension of the unutilized leave salary in favour of retired employees. 8.2. This Court while disposing the Writ Petitions, directs the State-Opp. party No.1 to release the unutilized leave salary in favour of the Petitioners within a period of 6(six) weeks from the date of receipt of this order with quashing of the rejection if any. 9. Copy of this order be communicated to the Chief Secretary, State of Odisha for information and onward transmission to all the Departments of the State. Photocopy of the order be placed in the connected cases.