Dr. Hari Prasad Das and ors. Vs. State of Orissa and anr. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - :air 1974 s c 1755, it has been held that the equality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall, substantially within the same class or unit of service.s.k. mohanty, j.1. the petitioners are lecturers two to non-government colleges, having honours subjects. state government by resolution dated 30-9-1977 (annexure-1) determined the hierarchy of college teachers in both government and non-government colleges confining the posts to lecturers. professors, principals of under-graduate colleges and principals of post-graduate colleges omitting the posts of readers and designating the incumbents in the posts of readers as lecturers. subsequently by resolution dated 1-5-1981 (annexure-3), the state government re-introduced to posts of readers in government ' colleges having honours and post-graduate teachings declaring the eligibility criteria for promotion to such posts. but so far non-government aided colleges are concerned, the posts of readers were re-introduced by resolution dated 27-9-1985(annexure-6; from the date of issue of the same declaring similar eligibility criteria for promotion to the posts of readers, the petitioners contend that as per the stipulated criteria they were eligible for promotion as readers by 1-5-1981 from which date annexure-3 became effective. their grievance is that they are discriminated because the resolution annexure 6 fixed the date of taking effect as 27-9.1985. in the circumstances, they have prayed that annexure-6 may be quashed and opposite parties may be directed to consider their promotion as readers with effect from 1. 5.1981.2. state of orissa and director, higher education have joined issue by filing counter wherein it is contended that teachers in non-government colleges stand on a separate footing constituting separate class distinct from teachers in government colleges and consequently there can be no question of discrimination.3. the factual governments in the counter about the method of recruitment and conditions of service in non-government colleges being different, are not controverted. thus a teacher for appointment in a government college is to compete in the test conducted by the public service commission whereas in non-government colleges a teacher is recruited mostly by the governing body and only in some cases through the selection board. the appointing authorities are different. on initial appointment a teacher in government college draws salary in the prescribed scale of pay whereas in a nongovernment college when a teacher is appointed otherwise than through the selection board he draws salary as may be fixed by the governing body until the college becomes eligible to receive full grant-in aid under the direct payment scheme.4. as to whether the concept of equal opportunity in matters of employment applies to variation in provisions as between members of different classes of employees under the state, the apex court in all india station masters' and assistant station masters' association, delhi v. general manager. central railway and others ; air 1960 sc 385, have answered the question in the negative. it has been held that equality of opportunity in matters of promotion must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes. in the facts of that case their lordships have further held that as road-side station masters and guards are recruited separately and trained separately and have separate avenues of promotion, the conclusion is irresistible that they form two distinct and separate classes as between whom there is no scope for predicating equality of inequality of opportunity in matters of promotion.in sham sundar v. union of india and ors. : air 1969 sc 212. it has been held that equality of opportunity in matters of employment under article 16(1) means equality as between members of the same class of employees and not equality between members of separate and independent classes.in general manager, s. e. railway and anr. v. a. v. r. siddhanti and ors. : air 1974 s c 1755, it has been held that the equality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall, substantially within the same class or unit of service. the guarantee of equality is not applicable as between members distinct and different classes of the service. the constitution does not command that in all matters of employment absolute symmetry be maintained.5. in the facts before us, we find that the teachers in non-government colleges form a class by themselves and they are distinct from the others in government colleges and, therefore, applying the ratio in the aforesaid decisions, we find no merit in the application and the same is, therefore, dismissed. no costs.d.p. mohapatra, j.6. i agree.