A.S. Naidu, J.
1. The Petitioner was selected and appointed temporarily as Grade-II Assistant in the College of Orissa University of Agriculture & Technology on 28.2.1970. The authorities being satisfied with his service on 29.1.1976 promoted him to the post of Grade-II Assistant in the scale of pay of Rs. 320-450/-.On 5.11.1977 the Petitioner was promoted to the post of Head Clerk in the scale of pay of Rs. 320-450/-.On 31.12.1977 the Petitioner was relieved from the post of Store Keeper to enable him to join as Head Clerk in the Department of Horticulture, College of Agriculture. While the. matter stood thus, on 11.2.1981 a common gradation list of Head Clerks was prepared and in the said gradation list, the name of the Petitioner found place at SI. No. 3. In the year 1981 one Mahadeb Sahu and two others filed O.J.C. No. 665 of 1981 before this Court with a prayer to treat them equivalent to Grade-I Assistants working under the same University and also to treat them as seniors to Opposite Parties 5 to 12 in the said case. It is pertinent to mention here that the Petitioner was impleaded as Opposite Party No. 6 in the said writ application which was disposed of on 18.5.1990. In the said Judgment it was observed as follows:.So far as Opposite Party No. 6 is concerned, the specific averment in the counter affidavit of Opposite Parties 1,3 and 4 is that vide office order No. 4155 dated 23.2.1970, Opposite Party No. 6 was selected by the Statutory Selection Committee for appointment to the post of Grade-II Assistant. Though he was selected for such post he was not able to join the post of Grade-II Assistant due to non-availability of suitable substitute which averment finds support from the counter affidavit filed by Opp. Parties 1, 3 and 4. It is apparent that due to no fault of Opp. Party No. 6 though he was selected to Grade-II Assistant on 28.2.1970 he was not permitted by the authority to join, and taking this fact into consideration the gradation list has been prepared. The placement of the Petitioners in the gradation list has been prepared on the basis of the recommendation of the Statutory Selection Committee, hence we are afraid, we cannot interfere in the inter se seniority between the Petitioners and opp. parties 5 and 6.
2. Thus, the position of the Petitioner who was Opposite Party No. 6 in the said Writ Petition remained unchanged in the gradation list and this Court also directed that the same should not be disturbed. In the year 1989 one Laxmidhar Nayak, a Senior Assistant in the Department of Plant Breeding & Genetics, C.A. of the same University approached this Court in O.J.C. No. 3251 of 1989, inter alia, praying that he was entitled to promotion to higher grade with effect from the date when his juniors had been promoted. According to the said Petitioner though he was promoted to the post of Grade-II since 1967 he was prevented from joining the promotional post on the ground that no substitute was available to man the post of store keeper. It was alleged that as he was prevented by the employer from discharging the duties in the promotional post, the benefits flowing from the promotional post should be granted to him. This Court by Order Dated 22.3.1994 allowed the writ application and issued a writ of mandamus to the Opposite Parties to grant promotional benefits to the Petitioner with effect from the date his juniors had been promoted.
3. Being fortified with the aforesaid two Judgments of this Court, the Petitioner approached the authorities to notionally promote him to the post of Grade-II Assistant with effect from the date he was promoted as such and to the post of Grade-I Assistant and as Section Officer with effect from the dates his juniors were promoted as such with all consequential benefits.
4. On receiving notice, the Opposite Parties have appeared and filed counter affidavit taking a stand that though the Petitioner was promoted to the higher post, as generally it takes time to relieve an employee who is in charge of stock and store, there was a delay in relieving him and such delay was not intentional. It is further averred that an employee is only entitled to receive the scale of pay for the post in which he has discharged his duties. As such, the Petitioner cannot claim the benefit of a higher post when he had not joined or discharged his duties in the said post.
5. The question that arises for consideration in this Writ petition is as to whether the Petitioner who was in fact promoted to the higher post can be denuded of the rights and benefits flowing out of the said promotion only on the ground that he was not relieved by the authorities so as to enable him to join the promotional post.
6. Mr. Patnaik, Learned Counsel appearing for the Petitioner, relying upon two decisions of this Court in O.J.C. No. 665 of 1981 Mahadeb Sahu and Ors. v. Chancellor, Orissa University of Agriculture & Technology, Bhubaneswar, decided on 18.5.1990 and O.J.C. No. 3251 of 1989 (Laxmidhar Nayak-versus-Vice Chancellor, Orissa University of Agriculture & Technology and others) decided of on 22.3.1994, submitted rather forcefully that as the Petitioner was prevented from joining the promotional post as he was not relieved from the post which he was holding for quite some time, he should not be prevented from enjoying the benefits flowing out of the promotional post and it is a fit case where the benefits should be extended to the Petitioner from the date of his promotion to the higher post.
7. Mr. Dora, Learned Senior Advocate appearing for the University on the other hand, resisted the above submissions mainly on the ground that there was a long delay in seeking the relief and after a lapse of more than twenty one years no benefit can be extended to the Petitioner and the relief sought is grossly barred by time.
8. According to Mr. Patnaik there is no limitation so far as the benefits flowing out of the service conditions are concerned, inasmuch as the Cause of action is recurring and continuous. That apart, it is submitting that the employees who are similarly situated like the Petitioner being Laxmidhar Nayak had file. O.J.C. No. 3251 of 1989 seeking self same relief and this Court was pleased to grant the said relief. Thus, similar benefit cannot be denied to the Petitioner who is equally placed. Relying upon the decision of the Supreme Court in the case of K.L. Shephard and Ors. v. Union of India and Ors. reported in : (1988)ILLJ162SC , Mr. Patnaik submitted that if some of the employees similarly placed by filing a writ application have got certain benefit, others even though have not approached the Court are entitled to the same benefits. In other words, it stated that the Petitioner being an obedient servant having not dragged the University to Court should not be penalized.
9. In the case of K.C. Sharma and Ors. v. Union of India and Ors. reported in : AIR1997SC3588 , the Supreme Court held that benefit of Judgment passed in a case should also be extended to the persons similarly placed and the delay, if any, should be condoned.
10. I have heard the Learned Counsel for the parties at length. In view of the discussions made above, this, Court finds that the relief sought for by the Petitioner is squarely covered by the Judgment of this Court in O.J.C. No. 3251 of 1989 Laxmidhar Nayak v. Vice Chancellor, Orissa University of Agriculture and Technology and Ors. delivered of on 22.3.1994. This Court, finds that though the Petitioner was promoted to the higher post and he had submitted a number of representations to relieve him from the post held by him so as to enable him to join in the promotional post, no steps were taken by the University and he was prevented from joining the promotional post. In that view of the matter denuding the Petitioner from the benefit flowing out of the promotional post, though the same benefits have been granted to the other similar employees, is unjustified.
11. I, therefore allow this Writ Petition and direct the Opposite Parties to consider the case of the Petitioner and to grant him promotional benefits notionally with effect from the date his juniors have been promoted in consonance with the ratio of the decision of this Court in the case of Luxmidhar Nayak (Supra).
12. It is needless to say that the Petitioner shall be entitled only to the monetary benefits accruing on the basis of the Judgment of this Court.