The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.210 of 2024 Sudhansu Sekhar Mishra Aged about 45 years Son of Sachidananda Mislira At: Tarading P.O.: Athagarh District: Cuttack/Athagarh … Appellant (Petitioner in the writ petition). -VERSUS- 1. State of Odisha Represented through its Secretary to Government Agriculture & Food Production Department Secretariat Building, Bhubaneswar District: Khurda. The Director of Agriculture & Food Production Orissa, Bhubaneswar, District: Khurda. The Deputy Director of Agriculture Kalahandi Range, Bhawanipatna District: Kalahandi. The Collector, Cuttack At/P.O./District: Cuttack … Respondents (Opposite parties in the writ petition). 2. 3. 4. Counsel appeared for the parties: For the Appellant : M/s. Ramanath Acharya and Basudev Barik, Advocates For the Respondents : Mr. Manoj Kumar Khuntia, W.A. No.210 of 2024 Additional Government Advocate Page 1 of 15 CORAM: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN MURAHARI SRI RAMAN, J.— JUDGMENT 09.04.2024 Challenge is laid in the intra-Court appeal to the Order dated 20th December, 2023 passed by the learned Single Judge in WPC (OAC) No. 2809 of 2012, whereby the Order dated 26.09.2011 of the Collector, Cuttack rejecting the application for appointment under the provisions of the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990, as amended by the Odisha Civil Services (Rehabilitation Assistance) Amendment Rules, 1998, in connection with the direction for consideration vide Order dated 11.03.2011 passed by the Odisha Administrative Tribunal,
Facts
Cuttack Bench, Cuttack, has been confirmed. 2. Shorn off unnecessary detail narration of facts, suffice it to say that the father of the Appellant, Electrician in the Office of Assistant Agricultural Engineer, Kalahandi, Bhawanipatna, having applied for voluntary retirement on account of permanent incapacitation to perform his duty as certified by the competent authority in terms of Rule 39 of the Odisha Civil Services (Pension) Rules, was allowed to retire with retrospective effect from 16.01.1998, by virtue of Order dated 05.12.1998 passed by the Director of Agriculture & Food Production, Odisha (Annexure- 3) and Order dated 13th January,1999 passed by the Deputy Director of Agriculture, Kalahandi Range, Bhawanipatna (Annexure-4). W.A. No.210 of 2024 Page 2 of 15 2.1 It is asserted by the Appellant (petitioner in the writ petition) at paragraph 3 of the writ appeal that “After retirement of his father the Appellant applied for appointment under Rehabilitation Assistance Scheme on 16.01.1998”. It is alleged that though documentation was appropriately made, since nothing turned out successful, the Appellant approached the Odisha Administrative Tribunal, Cuttack Bench in O.A. No.4164 (C) of 2010, which came to be disposed of on 11.03.2011 with a direction to consider the representation. 2.2. Pursuant to such direction the Collector, Cuttack, took up the matter and rejected the representation, thereby the claim of the Appellant for rehabilitation appointment has been refused citing inter alia following reason: “*** since the applicant has applied for his appointment under Rehabilitation Assistance Scheme on 26.07.1999, i.e., after the date line fixed by Government, i.e., 08.10.1998, the case of the Applicant could not be considered.” 2.3. To ventilate his grievance, the Appellant approached the learned Odisha Administrative Tribunal, Cuttack Bench by way of application under Section 19 of the Administrative Tribunals Act, 1985, registered as O.A. No.2809 (C) of 2012, which was re- registered as WPC (OAC) No.2809 of 2012 before this Court after abolition of said Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F.No.A-11014/10/2015-AT [G.S.R. 552(E)], dated 2nd August, 2019. The matter came up before the learned Single Judge of this Court, who by Order dated 20.12.2023 dismissed said writ petition with the following observation: W.A. No.210 of 2024 Page 3 of 15 to retire on “6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner‟s father was the ground of permanent allowed incapacitation with effect from 16.01.1998 vide order 05.12.1998 under Annexure-2. Thereafter, vide order dated 13.01.1999 Petitioner‟s father was relived from Government service with retrospective effect with effect from 16.01.1998. There is no dispute that Petitioner made his application to get the benefit of Rehabilitation Appointment on 26.07.1999. 6.1. The stand taken by the learned counsel for the Petitioner that as Petitioner‟s father was allowed to take retirement with effect from 16.01.1998 i.e. prior to the fixation of the cut-off date, Petitioner would have got the benefit in terms of the un-amended provisions is not acceptable as the retirement of the Petitioner‟s father with effect from 16.01.1998, vide order dated 05.12.1998 under Annexure-2 was never challenged or assailed by the employee concerned, Petitioner is not permitted to take such a plea in absence of any challenge to the said order by his father at any point of time. In that view of the matter, this Court finds no illegality or irregularity with the impugned order dated 26.09.2011 under Annexure-1 and dismiss the writ petition.” 2.4. Hence this writ appeal invoking Article 4 of the Orissa 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 Orissa, 1948. 3. This matter was on board on 08.04.2024. Application bearing I.A. No.653 of 2024 filed by the appellant with a prayer to condone the delay of one day in filing writ appeal has been pressed. As no objection was raised by the opposite parties, this Court condoned the delay in filing the writ appeal. W.A. No.210 of 2024 Page 4 of 15 3.1. Thereafter, this Court heard the matter for final disposal with the consent of counsel for both the sides as the pleadings were completed before the writ Court. 3.2. The matter is directed to be listed today (09.04.2024) for further hearing. The learned counsel for respective parties advanced arguments.
Legal Reasoning
“43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra-Court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.” W.A. No.210 of 2024 Page 11 of 15 7.2. In Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, it has been observed as follows: “Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.” 7.3. In Wander Ltd. Vrs. Antox India (P) Ltd., 1990 Supp. SCC 727, following is the observation: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court‟s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) W.A. No.210 of 2024 Page 12 of 15 Private Ltd. Vrs. Pothan Joseph, (1960) 3 SCR 713 = AIR 1960 SC 1156: (SCR 721) „*** These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vrs. Jhanaton,1942 AC 130: „*** the law as to the reversal by a Court of Appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case‟. ***‟ ” 7.4. It has been laid down in Life Insurance Corporation Ltd. Vrs. Asha Ramachandra Ambekar, AIR 1994 SC 2148 = (1994) 2 SCC 718 that: “It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside”. 7.5. It may be worthy of reference being made to Union of India Vrs. Shashank Goswami, (2012) 11 SCC 307. Paragraphs 9 and 10 of said reported Judgment reflects as follows: *** Appointment on compassionate ground cannot “9. be claimed as a matter of right. The appointment and merit. As a rule, public service appointment should be 10. invitation of the basis of open made strictly on applications on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative W.A. No.210 of 2024 Page 13 of 15 instructions condition of the family of the deceased.” into consideration taking the financial 8. In the wake of the above observations and for the reasons ascribed supra and in the light of discussions made in the foregoing paragraphs as also bearing in mind the limited scope of interference while sitting in intra-Court appeal filed under Article 4 of the Orissa 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 Orissa, 1948, this Court finds no reason to differ from the conclusions arrived at by the learned Single Judge vide Order dated 20.12.2023 rendered in WPC (OAC) No.2809 of 2012. 8.1. As the learned Single Judge (Writ Court) has not interfered with the finding of fact recorded by the authority concerned and rightly so, this Court is of the considered view that the Order assailed herein is perfectly legal and valid and does not call for interdiction by this Court in this intra-Court appeal. The counsel for the Appellant could not able to satisfy this Court as to whether there was any application pending as on 08.10.1998, i.e., the date of effect of the Odisha Civil Services (Rehabilitation Assistance) Amendment Rules, 1998 with reference to Clarification vide Government of Odisha in General Administration Department Letter No.39937-SC-6-71-97-(Pt.)- Gen., 30th November, 1998. No evidence has been adduced by the Appellant to suggest that required application to justify claim for appointment under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 was available with the authority concerned prior to 08.10.1998. Rather, the Collector, Cuttack as also the learned Single Judge returned finding of fact that the Appellant made his application to get the benefit of Rehabilitation Page 14 of 15 W.A. No.210 of 2024 Appointment on 26.07.1999. The Collector having applied his mind aptly applied the amended rules and rejected the application which has been confirmed by the learned Single Judge. Therefore, this Court finds no palpable error present in the Order of the learned Single Judge nor is there any compelling circumstance to intervene with the same. 9. In the result, having not found palpable infirmity in the Order of the learned Single Judge, this writ appeal, being devoid of merit, stands dismissed, but in the circumstances, there shall be no order as to costs. (Chakradhari Sharan Singh) Chief Justice (M.S. Raman) Judge High Court of Orissa, Cuttack The 9th April, 2024//Mrutyunjaya Panda. Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Apr-2024 14:46:39 W.A. No.210 of 2024 Page 15 of 15
Arguments
3.3. Heard Sri Ramanath Acharya, learned Advocate for the Appellant and Sri Manoj Kumar Khuntia, learned Additional Government Advocate for the respondents. 4. Sri Ramanath Acharya, learned Advocate for the Appellant contended that the learned Single Judge committed error of law in sustaining the Order of the Collector in rejecting the application for appointment under Rehabilitation Assistance Scheme inasmuch as Clarification vide Government of Odisha in General Administration Department Letter No.39937-SC-6-71-97- (Pt.)-Gen., 30th November, 1998 clearly suggested that pending applications were to be considered in terms of the extant position prevailing prior to the Odisha Civil Services (Rehabilitation Assistance) Amendment Rules, 1998 came into force with effect from 08.10.1998. He pressed into service item (ii) of said Clarification which reads thus: “After careful consideration of the references received it is clarified that: laid down (i) *** (ii) Cases which have already been initiated as per the provisions in Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 prior to 8th October, 1998 and are still pending shall be examined and disposed of as per the provisions contained in the Rules as they stood before the amendments, i.e., prior to 8th October, 1998.” W.A. No.210 of 2024 Page 5 of 15 4.1. Valiant attempt has been made by learned counsel for the Appellant to make it believe that since the application for appointment under the Rehabilitation Assistance Scheme was pending prior to 8th October, 1998, as the father of the Appellant was allowed to retire voluntarily in consideration of certificate of permanent disability with retrospective effect from 16.01.1998 even though Order of the Director of Agriculture and Food Production, Odisha was dated 05.12.1998 (Annexure-3) and Order of the Deputy Director of Agriculture, Kalahandi Range was dated 13.01.1999 (Annexure-4). 4.2. Sri Ramanath Acharya, therefore, urged to show indulgence in the Order dated 20.12.2023 of the learned Single Judge and prayed for quashing the Order of Collector and consequently to issue writ of mandamus to the opposite parties to appoint the Appellant under the Rehabilitation Assistance Scheme as was prevailing prior to 08.10.1998. 5. Sri Manoj Kumar Khuntia, learned Additional Government Advocate, per contra, argued that there is no justification in the prayer of the Appellant to intermeddle with the decision taken by the learned Single Judge in affirming the Order of the Collector. 5.1. The claim of the Appellant that he has applied for appointment under the said Scheme on 16.01.1998, i.e., prior to 08.10.1998 is a myth inasmuch as the Director of Agriculture and Food Production, Odisha allowed the father of the Appellant by Order dated 05.12.1998, pursuant to which the Deputy Director of Agriculture, Kalahandi Range by Order dated 13.01.1999 allowed the employee to relieve. Therefore, the assertion of the Appellant is not only false, but also misleading. It is stated that by way of rejoinder affidavit filed before the writ Court, the Appellant has affirmed as follows: W.A. No.210 of 2024 Page 6 of 15 “The father of the petitioner namely Sachidananda Mishra (Ex-Electrician) submitted an application on 16.1.1998 for voluntary retirement with a prayer for appointment of his son under Rehabilitation Assistance Scheme before Assistant Agriculture Engineer, Bhawanipatna, Kalahandi. The said application was forwarded to the Director Agriculture Food Production, Orissa for necessary approval.” 5.2. It is, therefore, submitted by the learned Additional Government Advocate that prior to consideration of the case of Sachidananda Mishra (father of Appellant), the application for appointment of the Appellant under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 could not be considered by the competent authority. Be that as it may, the claim for appointment under the Rehabilitation Assistance Scheme, being not matter of right, the Collector has rightly considered the representation of the Appellant which needs no interference at this distance of time. 5.3. The learned Additional Government Advocate has drawn attention of this Court to the Order of the Collector wherein it has been returned as a matter of fact that “the applicant has applied for his appointment under Rehabilitation Assistance Scheme on 26.07.1999”. The impugned Order dated 20.12.2023 of the learned Single Judge recorded at paragraph 6 that “There is no dispute that petitioner made his application to get the benefit of Rehabilitation Appointment on 26.07.1999”. 5.4. Under the aforesaid premises, it is argued by Sri Manoj Kumar Khuntia, learned Additional Government Advocate, that though the father of the Appellant was allowed to retire retrospectively with effect from 16.01.1998, since the Orders of the Director and the Deputy Director were passed after the cut-off date, i.e., 08.10.1998, on which the Odisha Civil Services (Rehabilitation W.A. No.210 of 2024 Page 7 of 15 Assistance) Amendment, 1998 came into force, the Appellant could not have made application prior to said date and in fact, factual position as transpired from the Order of the Collector as also the Order of the learned Single Judge that the Appellant had made application on 26.07.1999, no infirmity can be imputed. 6. Considered carefully the averments and the rival submissions. Upon hearing counsel for the respective parties and perusal of record, it is manifest that the father of Appellant was allowed to relieve from duty with retrospective effect from 16.01.1998 by virtue of the Order dated 13.01.1999 of the Deputy Director of Agriculture, Kalahandi Range pursuant to the Order dated 05.12.1998 of Director of Agriculture and Food Production, Odisha, which remained unquestioned. Fact of application for appointment under the Rehabilitation Assistance Scheme by the Appellant being made on 26.07.1999 has been recorded by the Collector which got concurred by the learned Single Judge vide Order dated 20.12.2023. Thus, unequivocal finding of fact as emanated from the record stands that, since the Appellant in the instant case made his application on 26.07.1999, i.e., after the cut-off date specified in the Clarification vide Letter dated 30.11.1998 of the Government of Odisha in General Administration Department, the case of the Appellant was not considered, more so, there was no objection nor was any challenge laid to the Orders dated 05.12.1998 and 13.01.1999 of the Director of Agriculture and Food Products and the Deputy Director of Agriculture, Kalahandi Range respectively allowing the father of the Appellant to retire retrospectively. 6.1. For ready reference and better appreciation, the Orders dated 05.12.1998 and 13.01.1999 are reproduced hereunder: W.A. No.210 of 2024 Page 8 of 15 “Office of the Director of Agriculture & Food Production Odisha : Bhubaneswar Order No.3E(22) 40/984535/Agril. Dt. The 05/12/1998 Sri Sachidananda Mishra, Electrician, O/o. the A.A.E., Kalahandi is hereby allowed to retire from Govt. Service on the ground of permanent incapacitation for further service w.e.f. 16.1.98 in accordance with Rule 39(2) Note-5 at the O.C.S. Pension Rules, 1992. Sd/- Director of Agriculture & Food Production, Orissa *** Office of the Deputy Director, Agriculture, Kalahandi Range, Bhawanipatna Order No.179/Agril. Dated the 13th January, 99 In pursuance of order No.4535/Dt.5.12.98 of the Director of Agriculture and Food Production, Orissa, Bhubaneswar Sri Sachidananda Mishra, Electrician in the establishment of Asst. Agril. Engineer, Kalahandi is hereby relieved from Govt. service with retrospective effect from 16.1.98 on the ground of permanent incapacitation under Rule 39(2) Note- 5 of O.C.S. Pension Rules, 1992. Sd/- Dy. Director of Agriculture, Kalahandi Range, Bhawanipatna” 6.2. As is apparent from the above, the aforesaid Office Orders are issued after the cut-off date, i.e., 08.10.1998. 7. Stemming on the settled position as to scope of Writ Appeal under the Letters Patent vis-(cid:224)-vis interference with the finding of fact vide Anindita Mohanty Vrs. The Senior Regional Manager, H.P. Co. Ltd., Bhubaneswar, 2020 (II) ILR-CUT 398, this Court made the following observation: W.A. No.210 of 2024 Page 9 of 15 “*** Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra-Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 Supreme Court Cases 52, Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent in law. This scope of with any particular position is within a narrow compass. Appellate interference jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made. In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram Singh reported in (2006) 13 Supreme Court Cases 449, it is held that in an intra-Court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai Vrs. Nilkanth Dhondiba Chavan reported in (2005) 6 Supreme Court Cases 243. In the case of Commissioner of Income Tax Vrs. Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 Supreme Court Cases 538, it is held that the jurisdiction of the Division Bench in a writ W.A. No.210 of 2024 Page 10 of 15 appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act concerned (Income Tax Act) and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed. Thus a writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.” 7.1. The Hon’ble Supreme Court of India in the case of N. Ramachandra Reddy Vrs. State of Telengana, (2019) 11 SCR 792, delineated the scope of intra-Court appeals by making following observation: