Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK WA No.119 of 2025 In the matter of an Appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948 *** Sri Prafulla Kumar Behera Aged about 54 years Son of Late Sansari Behera At: Pandara, P.O.: G.G.P. Colony Bhubaneswar, District: Khordha, Working as Contractual Driver Office of the Regional Transport Officer … Puri, District: Puri. -VERSUS- 1. State of Odisha Represented through The Principal Secretary to Government Commerce and Transport (Transport) Department Odisha, Bhubaneswar. 2. Principal Secretary to Government Finance Department, Odisha Bhubaneswar District: Khordha. Appellant WA No.119 of 2025 Page 1 of 79 3. Transport Commissioner-cum-Chairman State Transport Authority, Odisha Cuttack. 4. Regional Transport Officer Puri, At/P.O./District: Puri. … Respondents. Counsel appeared for the parties: For the Appellant : M/s. Prasanta Kumar Mishra, Kamal Lochan Kar and Sidhant Mishra, Advocates For the Respondent Nos.1 & 2 Mr. Saswat Das, : Additional Government Advocate For the Respondent Nos.3 & 4 Mr. Pravakar Behera, : Standing Counsel for Transport Department P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 12.05.2025 :: Date of Judgment :19.06.2025 MURAHARI SRI RAMAN, J.— J UDGMENT This intra-Court appeal is directed against the Judgement dated 17.12.2024 rendered by a learned Single Bench in an application, bearing W.P.(C) No.2160 WA No.119 of 2025 Page 2 of 79 of 2020, under Article 226/227 of the Constitution of India with the following prayer(s): “It is prayed, therefore that this Hon‟ble Court may graciously be pleased to: (i) (ii) Admit and allow the Writ Appeal, Issue notice to Respondents and after hearing be pleased to set aside the Judgment dated 17.12.2024 under Annexure-1 passed by the Hon‟ble Single Judge in W.P.(C) No.2160 of 2020 and: (iii) Further be pleased to allow the W.P.(C) No.2160 of 2020 by granting the relief(s) prayed therein 1 in favour of the Appellant-Petitioner with direction upon Respondents to regularize his service as Driver under regular establishment with all consequential service and financial benefits with effect from the date of completion of six years of service i.e. 1 (ii) The relief(s) sought for in the writ petition reads as follows: “It is prayed therefore that this Hon‟ble Court may graciously be pleased to: (i) Issue RULE NISI calling upon the opposite parties to show cause as to why the impugned orders vide No.658/TC dated 14.01.2020 at Annexure- 1, vide No.13642 dated 24.11.2018 at Annexure-2 and vide No.204 dated 16.01.2020 at Annexure-14 shall not be quashed and the service of the Petitioner shall not be regularized as Driver under regular establishment with effect from the date of completion of six years of service as contractual Driver with all consequential service and financial benefits; And if the Opposite Parties fail to show cause or show insufficient cause, the rule may be made absolute against Opposite Parties and a writ of mandamus may be issued to the Opposite Parties and be pleased to quash the impugned orders vide No.658/TC dated 14.01.2020 at Annexure-1, vide No.13642 dated 24.11.2018 at Annexure-2 and vide No.204 dated 16.01.2020 at Annexure-14 with a direction to Opp. Parties to regularize the service of Petitioner as Driver under regular establishment with effect from the date of completion of six years of service as contractual Driver with all consequential service and financial benefits within a time to be stipulated by this Hon‟ble Court; Pass such other order (s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner; And for this act of kindness, the petitioner as in duty bound shall ever pray.” (iii) WA No.119 of 2025 Page 3 of 79 01.10.2015 as Contractual Driver within a stipulated period of time and; (iv) Further be pleased to direct the Respondent Nos.3 and 4 to release the un-paid remuneration from January, 2020 in favour of the Appellant within a stipulated period of time. (v) And further be pleased to pass such other order (s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the Appellant; And for this act of kindness, the Appellant as in duty bound shall ever pray.” Facts: 2. Shorn off unnecessary detailed narration of facts as adumbrated by the appellant leading to filing of this writ appeal, suffice here to describe herein below the following: 2.1. Office vehicles in Chandikhole, Bhubaneswar, Ganjam, Rourkela, Sambalpur, Bargarh, Principal, Driving Training School, Bhubaneswar and Deputy Commissioner, Transport (North Zone), Sambalpur, said to have kept idle due to shortage of staff, for smooth enforcement and administration of motor vehicles, the concerned Regional Transport Offices, Deputy Commissioner, Transport (North Zone), Sambalpur and Principal, Driving Training School, Bhubaneswar, were authorised to engage “contractual driver with condition Page 4 of 79 WA No.119 of 2025 to renew every year” vide Office Order in Letter No.IX- 112/08-7551/TC, dated 11.06.2009. 2.2. Being so authorised, the appellant besides other similarly placed persons was engaged by Regional Transport Officer, Bhubaneswar, as Contractual Driver against a vacant post to drive a Jeep bearing Registration No.OR-02-AF-3003 vide Order No.6172, dated 01.10.2009, pursuant to which he joined in service and continued to work as such till date in the Office(s) of the Regional Transport Officer. 2.3. Having joined on 01.10.2009, the appellant should have been regularised with effect from 01.10.2015 as he completed six years of service. He is deemed to have been regularised in terms of Clause 2 of the Government of Odisha in General Administration Department, Odisha vide Resolution No.26108-GAD-SC-RULES- 0009-2013/Gen, dated 17.09.2013 (for convenience referred to as “GAD Resolution, 2013”). 2.4. Ignoring the case of the appellant for regularisation in the service, four Contractual Drivers out of 14 Contractual Drivers were appointed on regular basis. The appellant approached the learned Odisha Administrative Tribunal, Bhubaneswar by way of Original Application, registered as O.A. No.1234 of 2018, under Section 19 of the Administrative Tribunals Act, WA No.119 of 2025 Page 5 of 79 1985, for a direction to the authorities concerned to regularize his service as Driver. Pending this original application, the Respondent No.3 vide Letter No.12133, dated 06.08.2016 forwarded the details of remaining ten numbers of Contractual Drivers (including appellant) recommending regularisation of their service as Drivers. Accordingly, the learned Tribunal vide Order dated 12.01.2018 allowed said Original Application with a positive direction. 2.5. The High Power Committee (for short, “HPC”) in its Meeting held on 10.10.2018 flouted such direction of the learned Tribunal and rejected the claim of the appellant vide Office Order in Letter No.13642/TC, dated 24.11.2018 issued by order of the Transport Commissioner in the Office of the Transport Commissioner-cum-Chairman, State Transport Authority, Odisha, Cuttack (for short, “STA”). 2.6. While the authorities concerned were contemplating action to disengage the appellant, writ petition, being W.P.(C) No.2160 of 2020, was filed and in consideration of the plight of the appellant, the learned Single Judge while issuing notice to the opposite parties vide Order dated 22.01.2020 issued following interim direction: “As an interim measure, this Court directs that status quo as on today shall be maintained by the parties till the next date. WA No.119 of 2025 Page 6 of 79
Decision
It is further directed that the pendency of the writ petition shall not stand as a bar for considering the case of the petitioner for regularisation for being appointed as regular driver.” 2.7. The appellant stated to have served copies of writ petition on counsel for the opposite parties on 24.01.2020 and communicated the interim order passed by the learned Single Judge enclosed with a representation on 29.01.2020 to the Regional Transport Officer (Respondent No.4). However, on 06.02.2020 without following the principles of natural justice, referring to the impugned Order dated 14.01.2020 of the Additional Commissioner, Transport (Administration), STA, Odisha, said Regional Transport Officer issued Order No. 204/RTA, purported to have been passed on 16.01.2020 whereby the appellant is shown to have been disengaged from service. Said Order 16.01.2020 was served on the appellant on 06.02.2020 through peon book. 2.8. Questioning tenability of such order purported to have been passed on 16.01.2020, being served on the appellant on 06.02.2020, i.e., after the learned Single Judge passed the interim Order dated 22.01.2020 in the writ petition, the appellant sought for amendment of writ petition incorporating necessary details, which led to filing of consolidated writ petition being interlocutory application stood allowed. WA No.119 of 2025 Page 7 of 79 2.9. Other nine Contractual Drivers also approached this Court by way of filing W.P.(C) Nos.2157, 2159, 2162, 2234, 2237, 2241, 2245, 2246 and 26231 of 2020, which were disposed of along with writ petition of the appellant being W.P.(C) No.2160 of 2020 vide common Judgment dated 17.12.2024 passed in W.P.(C) No.2157 of 2020 & batch. The Order dated 17.12.2024 passed in the case of present appellant in W.P.(C) No.2160 of 2020 reads as under: “1. This matter is taken up through hybrid arrangement. 2. 3. In view of the common judgment passed today in W.P.(C) No.2157 of 2020 2 , this writ petition is disposed of. Interim order, vacated.” if any, passed earlier, stands 2.10. Being not satisfied, the writ appeal has been filed by the appellant craving to set aside the Judgment dated 17.12.2024 passed in W.P.(C) No.2160 of 2020 with prayers to issue of direction(s) to absorb him and in 2 The learned Single Judge has arrived at the following “conclusion” vide Judgment dated 17.12.2024 passed in W.P.(C) No.2157 of 2020 and batch: “*** 15. Upon analyzing the facts, this Court is not inclined to interfere with the decision of the High Power Committee in rejecting the regularization of the service of the petitioner. In light of the foregoing, this Court finds no merit in the petitioner‟s plea to interfere with the denial of regularization or the decision to disengage from service. Consequently, all the above mentioned Writ Petitions are hereby dismissed. Interim order, if any, passed earlier, in any of the Writ Petitions, stands vacated.” 16. 17. 18. WA No.119 of 2025 Page 8 of 79 consequence thereof grant all consequential service and financial benefits. Hearing: 3. The matter was on board under heading “Fresh Admission”. 3.1. Since short point, whether the learned Single Judge could have intermeddled with the irrational reasoning ascribed to by the HPC in order to disengage the appellant from service instead of considering the case of the appellant, Contractual Driver, for regularisation in service, though he worked as such for substantial number of years before interim protection was granted by this Court, is involved, on the consent of the counsel for the parties, this matter is disposed of at the stage of “Fresh Admission”. 3.2. Upon hearing Sri Prasanta Kumar Mishra, learned Advocate for the appellant, Sri Saswat Das, learned Additional Government Advocate for Respondent Nos.1 & 2 and Sri Pravakar Behera, learned Standing Counsel for Transport Department-Respondent Nos.3 &4, this Court proceeded to finally adjudicate the matter on merit. 3.3. On conclusion of arguments advanced by the respective counsel for the appellant as well as the respondents on WA No.119 of 2025 Page 9 of 79 12.05.2025, the matter stood reserved for preparation and pronouncement of Judgment/Order. Rival contentions and submissions: 4. Sri Prasanta Kumar Mishra, learned counsel for the appellant with the above factual backdrop submitted that the learned Single Bench has proceeded to decide the matter pondering heavily the terms of GAD Resolution dated 16.01.2014, and dismissed the writ petition acceding to the reasons ascribed by the HPC while rejecting the claim of the appellant for regularisation in service. 4.1. He would urge that when the learned Odisha Administrative Tribunal while disposing of Original Application, being O.A. No.1234 of 2016, vide Order dated 12.01.2018 allowed the prayer(s) for regularisation in service. After addressing the stand taken by the respondents, having regard to the plight of the appellant, directed the authorities “to regularise the services of the applicant as recommended vide Letter dated 06.08.2016” “as has been done in the case of similarly situated drivers”, (copy of order was available at Annexure-12 of the writ petition). Therefore, it is forcefully argued that the HPC showing scanty regard to the finding of fact and clear-cut direction, it rejected the claim for regularisation in service by adhering to General WA No.119 of 2025 Page 10 of 79 Administrative Department advisory in terms of GAD Circular No.16645/Gen., dated 30.07.2016 3 . Such decision of the HPC in brushing aside the recommendation of the appointing authority, who was duly authorised to appoint/engage Contractual drivers, rejection of claim of the appellant is not only unsustainable in law, but also the order of disengagement of the appellant tends to violation of rule of law, being not in consonance with the directions of the learned Odisha Administrative Tribunal. He would submit that the impugned Judgement of the learned Single Judge is, thus, flawed and cannot be countenanced. He, therefore, prayed to allow the writ petition. 4.2. It is painstakingly submitted by Sri Prasanta Kumar Mishra, learned Advocate that having joined on 01.10.2009 by virtue of Office Order dated 01.10.2009 of the Regional Transport Officer, the appellant completed six years of continuous service as a Contractual Driver on 30.09.2015. Therefore, in terms of GAD Resolution, 2013 the regularisation in service of the appellant should have been considered by the HPC, but reliance could not have been placed on the Circular dated 3 See, copy of “Proceeding of High Power Committee Meeting for regularization of Contractual Data Entry Operators and Drivers” held on 10.10.2018 as enclosed as Annexure-B/3 to the counter affidavit filed on behalf of the STA in connection with the writ petition, being W.P.(C) No.2157 of 2020 (Sri Krodapati Saraf Vrs. State of Odisha) disposed of vide impugned common Judgment. WA No.119 of 2025 Page 11 of 79 30.07.2016. It is submitted that the Circular could not have the overriding effect over the Resolution, 2013. 4.3. The alternative argument of the counsel is that even if it is assumed that there was non-fulfilment of conditions stipulated in General Administration Department Resolution No.1066-GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014 (“GAD Resolution, 2014”, for short), the terms of such Resolution could not be applied to the present fact-situation to disqualify the claim for regularisation in service as the same has prospective in operation. Expanding his argument, learned counsel urged that the appellant had been engaged against a sanctioned post under Scheduled Caste category prior to GAD Resolution, 2013 read with GAD Resolution, 2014. 4.4. It is matter of record which was conspicuously ignored by the learned Single Judge that prior to passing of interim order in the year 2020 in the writ petition, the appellant had already completed 10 years of service as Contractual Driver. It is vehemently contended that out of fourteen Contractual Drivers, four Contractual Drivers have been regularized whereas ten contractual drivers are discriminated. This arbitrariness in action of the respondents clearly transgressed the provisions enshrined in Article 14 of the Constitution of India and such action has been deprecated by the Hon’ble Supreme Court of India in very many cases. WA No.119 of 2025 Page 12 of 79 4.5. Therefore, the judgment dated 17.12.2024 passed by the learned Single Bench in W.P.(C) No.2160 of 2020 is liable to be set aside and the prayer made in the writ petition is insisted to be allowed. 4.6. Learned counsel for the Appellant further advanced submission that the authority concerned without giving reasonable opportunity to the appellant sought to disengage him and rejected the claim for regularization in service. He, relying on Letter dated 31.10.2016 (Annexure-11 to the writ petition), submitted that the Office of the Transport Commissioner-cum-Chairman, State Transport Authority, Odisha, Cuttack recommended the cases of the Contractual Drivers including the appellant for regularisation in service to the Under Secretary to Government, Commerce & Transport (Transport) Department, Odisha, Bhubaneswar. It is, therefore, contended with vehemence that the learned Single Judge having ignored to take into consideration facts stated therein, simply relied heavily on the reasons of the HPC. As the reasons are contrary to the material fact as reflected in the Letter of recommendation, the writ appeal deserves to be allowed. 5. Sri Saswat Das, learned Additional Government Advocate, opposing the contentions of the learned counsel for the appellant, made valiant attempt to WA No.119 of 2025 Page 13 of 79 present before this Court that pursuant to direction contained in Order dated 12.01.2018 passed in O.A. No.1234 of 2016 (Prafulla Kumar Behera Vrs. State of Odisha), the HPC has committed no mistake in analysing the fact-situation of the case while taking apt decision to reject the claim of the appellant for regularisation in service. Considering the nature of engagement of the appellant, said Committee applied the conditions as spelt out in the GAD Resolution, 2014. Having found non-fulfilment of such conditions, the HPC denied regularisation in service. 5.1. The learned Additional Government Advocate referring to “Conclusion” arrived at by the learned Single Judge would submit that each conditions stipulated in the GAD Resolution, 2014 has been kept in view by the learned Single Bench. Since the sanction of post is the prerogative of the Government, the High Court in exercise of power under Article 226 of the Constitution of India cannot issue writ of mandamus to create or sanction posts. The appellant having not been appointed/engaged against sanctioned post, the HPC was legally justified in rejecting the claim for regular appointment. 5.2. Having failed to substantiate the claim vis-(cid:224)-vis the conditions envisaged in the GAD Resolution, 2014, the WA No.119 of 2025 Page 14 of 79 appellant, Contractual Driver, is not entitled to be regularised in service. 5.3. Thus, the learned Additional Government Advocate as also the Standing Counsel for Transport Department argued that parity claimed attune with the cases of four Contractual Drivers who were regularised stemming on provisions of Article 14 of the Constitution of India cannot be sustained inasmuch as the HPC in its Meeting dated 10.10.2018 (Annexure-B/3 of the Counter Affidavit) clearly stated that “since none of the provisions of GA Department (Resolution) are fulfilled the regularisation order No.11547/TC, dated 31.08.2015 made in respect of four numbers of Drivers by STA is to be revoked”. Hence, it is insisted by the counsels for the respondents that stance of the appellant, sans merit, is liable to be rejected. Analysis and discussions: 6. At the outset this Court takes up the issue whether there is any scope left in view of Order dated 12.01.2018 of the Odisha Administrative Tribunal passed in O.A. No.1234 of 2016 (Prafulla Kumar Behera Vrs. State of Odisha) to delve into the factual merit of the claim of the appellant by the HPC. WA No.119 of 2025 Page 15 of 79 6.1. Pertinent observations contained in the said Order passed by the Odisha Administrative Tribunal runs as follows: “The applicant who was working as a driver on contractual basis, has sought for regularisation of his service, as has been done in the case of similarly situated persons vide Order dated 31.08.2015. for a direction *** Learned Standing Counsel, basing on the counter submitted that the applicant has not been selected following the regular recruitment process and following the GA Department Resolution No.1066, dated 16.01.2014. It is submitted that as the applicant does not fulfil the mandatory eligibility criteria, he is not eligible for regularisation. From the documents produced by the applicant, it appears that the applicant was initially engaged on contingent paid daily wage basis for 15 (fifteen) days in a month with effect from 30.04.2007 vide Order dated 02.05.2007 (Annexure-1). Thereafter, the applicant was engaged as contractual driver vide Order dated 01.10.2009 and was also directed to perform the duty of a driver vide Order dated 31.07.2011. It appears from the letter of the Government in Commerce and that Transport Department dated 25.04.2008 Government in Finance Department have concurred the proposal for engagement of 14 drivers. Accordingly vide Letter dated 31.10.2016, Transport Commissioner for regularisation of 14 drivers stating that those drivers Government requested the WA No.119 of 2025 Page 16 of 79 following have been engaged, following the recruitment procedure as well as the principle of reservation. The name of the applicant appears at Sl.No.9 of the list. Thereafter, vide Order dated 31.08.2015, four drivers have been appointed on regular basis on successful completion of six years of uninterrupted contractual service. The stand of the State-respondent in the is that the applicant has not been counter procedure which appointed contradicts Transport Commissioner vide Annexure-B/2. Out of the said list, four drivers have already been appointed and the Transport Commissioner vide letter at Annexure-B/1 have submitted the list of rest of the drivers for regularisation of their services. However, no action has yet been taken. Since similarly situated drivers out of the list submitted vide Annexure-B/2 have already been regularised the applicant’s claim for regularisation cannot be denied. vide Letter at Annexure-7, letter due the the of Accordingly, the O.A. is allowed and the respondent authorities are directed to regularize the services of the applicant as recommended vide Letter dated 06.08.2016 as at Annexure-B/1, as has been done in the case of similarly situated drivers vide letter at Annexure-B/2. Such action be taken as expeditiously as possible but within a period of three months from the date of receipt of a copy of this order. With these orders the O.A. is disposed of.” 6.2. Vide Letter No.IX-29/2016— 16925/TC, dated 31.10.2016, the Under Secretary in the Office of Transport Commissioner-cum-Chairman, State WA No.119 of 2025 Page 17 of 79 Transport Authority, Odisha, Cuttack, the case of the appellant along with others has been recommended for regularisation in service. The text of said letter is reproduced hereunder: “*** Sub.: Regularization of services of Drivers on contractual basis. Ref.: Commerce and Transport (Transport) Department letter No.7331/T dated 19.10.2016, this office letter No.2648/TC dated 20.02.2016 and 12133/TC dated 06.08.2016. Sir, 1. 2. In inviting reference to the letter on the subject cited that details of above, contractual drivers engaged in STA and its sub- ordinate offices is given below: I am directed to say 14 numbers of drivers have been engaged in STA and its sub-ordinate offices as per concurrence of Finance Department which was intimated to this office vide Commerce and Transport (Transport) Department Letter No.3554/T dated 25.04.2008 on contractual basis. The Odisha Gazette dated 16.01.2014 says that contractual appointment/engagements must have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts. Although the the regular posts have not been abolished, WA No.119 of 2025 Page 18 of 79 contractual engagement has been allowed within the sanctioned strength of the posts of driver. In other words no engagement has been made beyond the sanctioned strength. 3. Recruitment procedure prescribed has been followed while giving contractual engagement to the drivers. 4. Principle of reservation of posts has been observed properly. this connection, statement showing details of In contractual drivers is enclosed herewith. It is therefore requested that necessary steps may kindly be taken for placement of the case before the high power committee as stipulated in G.A. Department Resolution No.1066, dated 16.01.2014.” 6.3. Meticulous reading of said Order dated 12.01.2018 transpires that the reasons put forth by the HPC in its Meeting dated 10.10.2018 (Annexure-B/3 of the counter affidavit) was before the learned Odisha Administrative Tribunal. After considering all these aspects, the same were duly considered and the learned Tribunal has rendered positive direction “to regularise the services of the applicant as recommended vide Letter dated 06.08.2016”. 6.4. No substance is placed on record that such finding of fact including the conclusion and direction of the learned Odisha Administrative Tribunal has been upturned in the higher Court(s). WA No.119 of 2025 Page 19 of 79 6.5. Therefore, the HPC fell in grave error in reconsidering the factual merit of entitlement of the appellant for regularisation in service. The HPC in order to say that the claim of the appellant does not fulfil conditions laid down in the GAD Resolution, 2014, it has reconsidered the merits which had already been addressed to by the learned Odisha Administrative Tribunal. Nothing is placed by the respondents to demonstrate that said order of the learned Odisha Administrative Tribunal containing positive direction was questioned before higher Court(s). 6.6. It is trite that the decision of the Tribunal is binding on the State-functionaries and authorities, until and unless the same is quashed/reversed/modified by this Court or the Hon’ble Supreme Court. It is propounded in Ujjam Bai Vrs. State of Uttar Pradesh, AIR 1962 SC 1621 = (1963) 1 SCR 778 that: “It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The WA No.119 of 2025 Page 20 of 79 question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry.” 6.7. In Tobacco Manufacturers (India) Ltd. Vrs. Commissioner of Sales Tax, Bihar, (1961) 2 SCR 106, it has been held as follows: “The principal point that Mr. Chatterjee, learned counsel for the appellants, argued before us related to the duty of the tax authorities to obey the orders of the Board of Revenue and give effect to them, and he submitted that the High Court erred in denying his clients the relief of mandamus on the ground that that order was erroneous. In support of this argument learned counsel sought reliance on a recent decision of this Court in Bhopal Sugar Industries Vrs. Commissioner of Income-tax, Civil Appeal 407 of 1956; since reported at (1960) 40 ITR 618 in which it was held that when an order was made by a superior tribunal (in that case the Income-tax Appellate Tribunal) directing the Income-tax Officer to compute the income of an assessee on a particular basis and that order had become final, the subordinate officer had no right to disregard the direction, because it was wrong and that the High Court when approached by the assessee for the issue of a writ of mandamus, was bound to enforce the final order of the superior tribunal and could not refuse to do so because it considered the order of the tribunal to be wrong. This Court pointed out that when the order which the tribunal had jurisdiction to pass became final, it bound all WA No.119 of 2025 Page 21 of 79 parties to it and its correctness could not be challenged collaterally in proceedings for enforcing that order. The attempt of learned counsel for the appellants was to bring this case within the scope of the above ruling. The ratio of this decision is to be found in this passage: „By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hirearchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.‟ To attract the principle thus enunciated, it is necessary that there should be an order of a superior tribunal clear, certain and definite in its terms, and without any ambiguity, to which the subordinate authority or officer to whom it is addressed, could give effect.” 6.8. In Godrej Sara Lee Ltd. Vrs. The Excise and Taxation Officer-cum-Assessing Authority, (2023) 3 SCR 871 it has been laid down that: WA No.119 of 2025 Page 22 of 79 “In our view, the Revisional Authority might have been justified in exercising suo motu power to revise the order of the Assessing Authority had the decision of the Tribunal been set aside or its operation stayed by a competent Court. So long it is not disputed that the Tribunal’s decision, having regard to the framework of classification of products/tax liability then existing, continues to remain operative and such framework too continues to remain operative when the impugned revisional orders were made, the Revisional Authority was left with no other choice but to follow the decision of the Tribunal without any reservation. Unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to assessees. We share the view expressed in Union of India and Ors. Vs. Kamlakshi Finance Corporation Ltd. 1992 SUPP (1) SCC 443 = AIR 1992 SC 711.” 6.9. A Division Bench of this Court in the case of Orissa Forest Corporation Ltd. Vrs. Assistant Collector, 1982 SCC OnLine Ori 209 held as follows: “We do not think this should be the attitude of the Union Government. The demand is under the Statute and the statutory appellate authority, on the set of facts which are common both to the period when relief was granted and the period for which the impugned demand has been made, has already determined that no levy is exigible. As long as the appellate order stands, it must be duly respected and only when the revisional authority vacates the order and holds that the decision of the appellate authority is wrong and the demand was justified, no WA No.119 of 2025 Page 23 of 79 demand should be raised. It has been indicated on more than one occasions by the Supreme Court with reference to directions of the Appellate Tribunal under the Income Tax Act that such directions are binding and decisions rendered by appellate authorities should be respected by the subordinate revenue authorities and no attempt should be made to wriggle out of the binding decisions of higher authorities as long as they remain in force. The same principle should be applied to the present set of facts and we are, therefore, inclined to take the view that the demand under Annexure-4 should be set aside but we would make it clear that in the event of the appellate orders being vacated, under the Statute the liability would revive and notwithstanding our quashing Annexure-4 the statutory authority would be entitled to raise a demand in terms of the decision which may be ultimately sustained under the Statute.” 6.10. At this stage it is reminded of that, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. [See, Shrilekha Vidyarthi (Kumari) Vrs. State of U.P., (1991) 1 SCC 212]. 6.11. Any order passed by the Odisha Administrative Tribunal, constituted under the provisions of the Administrative Tribunals Act, 1985 4, ought to be respected and fully 4 Long title of the Administrative Tribunals Act, 1985, runs thus: “An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of Page 24 of 79 WA No.119 of 2025 complied with, inasmuch as the hierarchy in the judiciary needs to be respected by one and all. In that hierarchy, the orders passed by the learned Odisha Administrative Tribunal would bind the parties before it. [Regard being had to observations made in Order dated 15.05.2024 of the Supreme Court of India passed in the case of Ireo Grace Realtech Pvt. Ltd. Vrs. Sanjay Gopinath, C.A. Nos. 2764-2771 of 2022.] 6.12. In the aforesaid premise, it is not for the HPC to reconsider the merit of the matter to adjudicate afresh the entitlement of the appellant contrary to what had already been observed and held in the Order dated 12.01.2018 passed in O.A. No.1234 of 2016 by the learned Odisha Administrative Tribunal. The tenor of direction of the learned Odisha Administrative Tribunal was loud and clear whereby it has unambiguously directed to regularize the service of the appellant without granting any scope to the HPC to sit over the findings which was adjudicated by the learned Tribunal in its decision. Approving the decision of HPC would clearly tantamount to violation of rule of law. 6.13. The learned Single Judge in his Judgment dated 17.12.2024 manifestly committed error of law in ignoring persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution and for matters connected therewith or incidental thereto.” WA No.119 of 2025 Page 25 of 79 to take cognizance of aforesaid factor despite the appellant agitated in the writ petition. 7. A close scrutiny of the impugned Judgment would reveal that in order to uphold the denial of regularisation in service by the High Power Committee, the learned Single Judge has assigned the reason that the appellant has not met mandatory eligibility criteria outlined in GAD Resolution, 2014. 7.1. The essentials criteria can be culled out from the General Administration and Public Grievance Department Resolutions, which were considered by the Odisha Administrative Tribunal in the earlier round of litigation: “GAD-SC-RULES-0009-2013—26108/Gen Government of Odisha General Administration Department *** RESOLUTION Bhubaneswar dated the 17th September, 2013. SUB: Regular appointment of existing contractual Group C and Group D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such rules. The policy regarding regular appointment of following „D‟ categories of contractual Group „C‟ and Group WA No.119 of 2025 Page 26 of 79 employees appointed under the State Government was under active consideration of Government for some time past. Contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services, following the the corresponding the principle of reservation of Posts and services for different categories of persons decided by the state Government from time to time. procedure regular posts and recruitment prescribed for careful consideration and in Government after supersession of the Resolutions/Orders/Instructions issued by different Departments of Government to that effect; except as respects things done or omitted to be done before such supersession, have been pleased to decide as follows: 1. Regular Appointment.— (1) A gradation list of such contractual employees shall be prepared by the Appointing Authority on the basis of their date of appointment. In case, the dates of appointment of two or more employees are the same their inter-se position may be decided on the basis of their date of birth, taking the elder as senior. (2) Regular appointment of the above categories of contractual employees shall be made on the date of completion of six years of service or from the date of publication of this Resolution, whichever is later, in WA No.119 of 2025 Page 27 of 79 the order in which their names appear in the gradation list prepared under para 1. The period of six years shall be counted from the date of contractual appointment prior to publication of this Resolution. (3) Consequent upon regular appointment under the contractual post, if any, shall get re-converted to regular sanctioned post. (4) In case the person concerned has crossed the upper age limit for entry into Government service on the date the corresponding regular post, the appointing authority shall allow relaxation of upper age limit. appointment contractual for of 2. Conditions of Service on Regular Appointment.— (1) Regular Appointments: On the date of satisfactory completion of six years of contractual service or from the date of publication of this Resolution, whichever is later, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority. (2) Pay and other benefits: On regular appointment they shall be entitled to draw the time scale of pay plus Grade Pay with DA the and other allowances as admissible corresponding pay band. in (3) Other conditions of service: WA No.119 of 2025 Page 28 of 79 (a) The other conditions of service shall be such as has been provided in the relevant recruitment rules. (b) The conditions of service in regard to matters not covered by this Resolution shall be the same as are or as may from time to time be prescribed by the State Government. 3. Interpretation.— If any question arises relating to the interpretation of this Resolution, it shall be referred to the State Government whose decision thereon shall be final. 4. This has been concurred in by Finance Department and Law Department vide their UOR No.2909-ACSF, Dated 09.07.2013 and UOR No.1687/L., Dated 19.07.2013 respectively. ORDER: Ordered that the Resolution be published in the extraordinary issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all Departments of Government / all Heads of Departments/all Collectors / Registrar, Odisha High Court / Registrar, Odisha Administrative Special Secretary, Odisha Public Service Commission / Secretary, Odisha Staff Selection Commission/ Secretary, Odisha Sub-ordinate Staff Selection Commission, Bhubaneswar. Tribunal By Order of the Governor NITEN CHANDRA Special Secretary to Government” *** *** *** WA No.119 of 2025 Page 29 of 79 [No. 1066-GAD-SC-RULES-0009/2013/Gen.] General Administration Department RESOLUTION The 16th January, 2014 Sub: Regular Appointment of existing Contractual Group C and Group-D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such rules. 1. As per General Administration Department the 17th Resolution No. 26108/Gen., Dated September, 2013, the following are the mandatory regularlzation of conditionalities eligibility contractual appointees/engagements. for (i) Contractual appointments/engagements must have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services, (ii) Such Contractual appointments/ engagements must have been made following recruitment procedure prescribed for the corresponding regular posts, and the WA No.119 of 2025 Page 30 of 79 (iii) Principle of reservation of Posts must have been followed in case of such Contractual appointments/engagements. In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolution unless the mandatory eligibility conditionalities described above are fulfilled. 2. A part from the contractual employees fulfilling the conditionalities elucidated in Para. 1 above, there are other categories of contractual employees engaged with or without creation of posts with the concurrence of Finance Department, without following the relevant recruitment and reservation Rules. There are also contractual employees engaged on out sourcing basis through service providing agencies. These contractual employees are not eligible for regularization as per the aforesaid Resolution. 3. to prevent misuse of the aforesaid In order Resolution, it is felt necessary to put appropriate mechanism in place to ensure that the necessary conditionalities as mentioned in Para. 1 are met. 4. Government, therefore, after careful consideration in the following have been pleased to decide manner. (a) Proposal for regularization of contractual appointees/engagements as per the aforesaid Resolution shall be considered and approved by a HPC the Chairmanship of the Secretary of the relevant to be constituted under WA No.119 of 2025 Page 31 of 79 Department in which the concerned Head of Department and FA/AFA of the Department shall be Members. (b) In case the matter pertains to Administrative Department, then the High Power Committee shall be constituted under the Chairmanship of the Secretary of the Department with Special Secretary/Additional Secretary in-charge of the office establishment and FA/AFA of the Department as Members. (c) While considering the cases of regularization, High Power Committee shall at the outset ensure that the concerned appointments fulfil the mandatory eligibility conditionalities as elucidated in Para. 1 above and thereafter consider the the heading stipulations contained under the General „Regular Appointments‟ Administration Resolution No.26108/Gen, Dated the 17th September, 2013. the basis of the case on Department of 5. This Resolution has been issued with the advice of Finance Department communicated to General Administration Department vide their DOR No.5660- ACSF, dated the 19th December, 2013. Order: Ordered that the Resolution be published In the Extraordinary Issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all departments of Government/ all Heads of Departments/all Collectors/ Registrar, Odisha High Court/Registrar, Tribunal/Special Odisha Administrative WA No.119 of 2025 Page 32 of 79 Odisha Secretary, Service Commission/Secretary. Odisha Staff Selection Commission/Secretary, Odisha Sub-ordinate Staff Selection Commission. Bhubaneswar. Public By Order of the Governor NITEN CHANDRA Special Secretary to Government” 7.2. Going through said Resolutions, particularly GAD Resolution, 2014, it is made to understand that Contractual Appointment must have been made against contractual posts created with concurrence of Finance Department on abolition of the corresponding regular posts or contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services. At this juncture if the Office Order dated 11.06.2009 (Annexure- 5) is glanced, it is depicted that due to shortage of regular Drivers, the office vehicles being kept idle in certain offices, concerned Regional Transport Officers, Deputy Commission of Transport (North Zone), Sambalpur and Principal, Driving Training School, Bhubaneswar were authorised “to engage Contractual Driver with condition to renew every year by the Finance Department Order No.Bt-V-47/04-55764-F., dated 31.12.2004 communicated vide Commerce and Transport (Transport) Department Letter No.1913-T., Page 33 of 79 WA No.119 of 2025 dated 10.02.2005”. In the said letter it has been stipulated that the appointment shall be made with strict adherence with the terms and conditions imposed by Finance Department. Therefore, the HPC having held otherwise without assigning cogent reason, the engagement/appointment of Contractual Drivers could not be said to be de hors record and material available on record. So far as concurrence of the Finance Department is concerned, this aspect has been considered by the Odisha Administrative Tribunal in its Order dated 12.01.2018 passed in O.A. No.1234 of 2016 in connection with the appellant’s case, wherein it has been mentioned that “Thereafter, he was engaged as a Contractual Driver vide Order at Annexure-4 and 4/1. While the matter stood thus, Government in Finance Department vide their letter at Annexure-5 approved the proposal for appointment of 14 Contractual Drivers”. This Court is, thus, convinced that the appointment of the appellant was made against sanctioned post with necessary concurrence as is made necessary in the said Resolution. 7.3. The next condition as revealed from the GAD Resolution, 2014 is that contractual appointment/engagement must have been made following the recruitment procedure prescribed for corresponding regular posts. This aspect has been dealt with by the Odisha Administrative WA No.119 of 2025 Page 34 of 79 Tribunal in its Order dated 12.01.2018 passed in O.A. No.1234 of 2016 in connection with the appellant’s case. From the said Order which has been extracted supra it is recorded that “the stand of the State-respondent in the counter is that the applicant has not been appointed following due procedure which contradicts the letter of the Transport Commissioner vide Annexure-B/2”. Therefore, in the present case, the counter affidavit filed in the writ petition taking contradictory stand by the Transport Department, which aspect has already been decided by the Odisha Administrative Tribunal and remained unchallenged by the respondents in further proceedings. 7.4. In Kalinga Mining Corpn. Vrs. Union of India, (2013) 5 SCC 252 the principle of res judicata vis-(cid:224)-vis scope to reopen already decided issue in another litigation inter se parties has been discussed as follows: