State without justice akin to ‘band of robbers’: Orissa High Court rebukes govt over SC employee’s two-decade ordeal

Justices Krishna Shripad Dixit and Chittaranjan Dash were dealing with the Odisha government’s plea challenging a single judge’s order.

The order added that someone has to raise the red flag, and we are doing it. Criticising the state’s action, Justice Dixit, who authored the verdict, said, “What all happened in this case reminds us of Alice in Wonderland by Lewis Carroll. It raises a question: whether the state is the first enemy of scrupulous citizens?”

The bench added that we do not venture to answer it, and quoted British philosopher Jeremy Bentham’s lines: “‘What is a state without justice, but a band of robbers…’. Much is not necessary to deliberate.”

‘Idea of India’ and ‘Annihilation of Caste’

The order quoted Rabindranath Tagore (1861-1941), from a letter addressed to C F Andrews in 1921, that the “idea of India” itself militates “against the intense consciousness of the separateness of one’s own people from others”.

Noting that untouchability and casteism were two monsters that afflicted our society for centuries, if not millennia, the bench added that the south of the country heralded a new epoch of equality and egalitarianism.

Emphasising that from time to time, several great persons have campaigned for the eradication of these maladies, the judge further quoted Ambedkar and his book ‘Annihilation of Caste’.

“Under his leadership, a progressive Constitution came to be enacted inter alia, providing for the abolition of untouchability, and reservation by affirmative action in favour of oppressed communities,” the bench stated.

Highlighting that several policies of affirmative action were formulated for the upliftment of the downtrodden and for the protection of marginalised sections of society, the court said that in matters of education, employment, entry to public spaces, election, etc, these sections secured relief to an extent, and cannot be denied.

The order went on to quote lines from Martin Luther King Jr’s essay ‘My trip to the Land of Gandhi’ saying, “‘We were surprised and delighted to see that India has made greater progress in the fight against caste ‘untouchability’ than we have made here in our own country against race segregation. Both nations have federal laws against discrimination….”

The lines continued, “But after this has been said, we must recognize that there are great differences between what India has done and what we have done on a very similar problem. The leaders of India have placed their moral power behind their law. From the Prime Minister down to the village councilmen, everybody declares publicly that untouchability is wrong.

“But in the United States, some of our highest officials decline to render a moral judgment on segregation, and some from the South publicly boast of their determination to maintain segregation. This would be unthinkable in India… Gandhi also renamed the untouchables, calling them ‘Harijans’ which means ‘children of God’,” the essay says.

The bench noted that all being said, still individual cases of discrimination against downtrodden in the matter of education and employment galore, need no research for demonstration.

‘He was made to run from pillar to post umpteen times’

• The case of the respondent is one of class. He was made to run from pillar to post umpteen times.
• The single judge was right in granting relief to the respondent, who has rendered a spotless service of 12 years and four months, reckoned from the unceremonious removal.
• The answering appellants arbitrarily and capriciously had caused disengagement, mindlessly applying the decision in Hrushikesh Bindhani judgment, having earlier held it to be inapplicable, in so many words.
• This decision was not the subject matter of a show-cause notice stating that the same was wrongly held to be inapplicable.
• The contention advanced by the additional government advocate that the candidature of the respondent could not have been considered even in the first appointment dated November 29, 2003, is bereft of elements of justice.
• There is no merit in the plea that the candidature of the respondent fell outside the quota earmarked for the scheduled caste category.
• It is not the case of the appellants that the respondent does not have the professed social status.
• He had applied for the post in the open market and faced the competition. He succeeded in the examination and was selected.
• In the select list, he ranked at no 12, a few others above him having not joined the employment. The advertised vacancies for SC candidates were 15.

Exemplary cost on state

• This is a fit case for the levy of exemplary cost of Rs 50,000 for making a meritorious person belonging to the Scheduled Caste mount multiple legal battles successfully.
• The fruits of victorious battles to some extent eluded him. Mindlessness and callousness galore on the part of the authorities that be.

Background

• The dispute originated from a 2003 recruitment process for the post of Swechhasevi Sikshya Sahayak (SSS).
• Debendra Nath Malik was selected on merit, ranking 12th in the Scheduled Caste (SC) category select list, well within the 15 advertised vacancies.
• Despite his legitimate appointment and “spotless service,” the state repeatedly sought to disengage him, citing a 2004 judgment of Hrushikesh Bindhani v State of Odisha, which the court ultimately found was entirely inapplicable to his case.
• In 2007, acting on Malik’s plea against the authorities’ order, the high court quashed the disengagement order and remanded the matter for fresh consideration.
• In 2008, due to delays in the remand process, Malik filed a contempt case.
• In early 2009, the collector issued a fresh engagement order for one year, specifically finding that the Hrushikesh Bindhani judgment does not apply to the respondent.
• After Malik filed another petition seeking continuity of service, the court directed the state to consider his representation.

• In 2012, after a second contempt case was filed due to inaction, the state undertook to make a decision, and the proceedings were dropped.
• Following this, the collector rejected the respondent’s representation for regularising the break in service between 2006 and 2009.
• The collector issued a show-cause notice for disengagement based on a different case, Ganeswar Sethi v State of Orissa.
• In 2016, Malik filed a plea challenging the show-cause notice and seeking regularisation. While the 2016 petition is pending, the collector removed the respondent from service for a second time, again citing the Hrushikesh Bindhani case.
• The respondent subsequently filed another plea challenging this order.
• In 2023, a single judge of the high court quashed the 2018 removal order and directed Malik’s reinstatement with all benefits.
• The state challenged the single judge’s 2023 order that quashed the authorities’ order and directed the reinstatement of Malik with all consequential service and financial benefits.