Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No.31 of 2025 (In the matter of an application under Order 47 read with Sections114 of Civil Procedure Code, 1908) Banita Behera State of Odisha &Ors. -versus- …. …. Petitioner(s) Opposite Party (s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Manoj Ku. Mohanty, Adv. Ms. Sarita Moharana, ASC CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING:-13.08.2025 DATE OF JUDGMENT: -17.10.2025 Dr. Sanjeeb K Panigrahi, J. 1. In this RVWPET, the Petitioner seeks review of the judgment dated 22.12.2023 passed in W.P.(C) No.6290 of 2018 dismissing her prayer, wherein the Petitioner had challenged the order dated 26.03.2018 of the Collector-cum- Chief Executive Officer, Zilla Parishad, Mayurbhanj disengaging her from the post of Swechhasevi Shikshya Sahayak on the ground that she was engaged after 26.09.2003. 2. The Petitioner now seeks to recall of that judgment on the ground that it was rendered without considering the facts pleaded and Page 1 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 submissions made in the Writ Petition by the Petitioner and the relevant law, resulting an error apparent on the face of the record. 3. For clarity, the operative portion of the aforesaid judgment under review is reproduced below: “37.It is not disputed that the petitioner was not provided with a show cause notice before being disengaged. Principle of natural justice is one of the major principles to be iterated in administrative jurisprudence. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling it is felt that a fair hearing ’would make no difference’ - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to afford a hearing arises. 38. Accordingly, it has been held by the Apex Court that no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing’. In such situations, fair procedures appear to serve no purpose since ’right’ result can be secured without according such treatment to the individual. 39. Therefore, even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of ’prejudice’. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing. 40. In M/s. Escorts Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division, Nainital, U.P. & Ors.1, the Supreme Court, while reiterating the position 1(2004) 4 SCC 281 Page 2 of 20
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms: “Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." 41. When the recruitment process is declared null and void in WP(C) No. 11748 of 2003 the petitioner is ceased to be an employee of Shikshya Sahayak and even though he has been allowed to work for the said period cannot be counted. The Government also directed all Collectors to disengage the Swechhasebi Shikshya Sahayak engaged after 26.09.2003 and not selected subsequently and when the SLP No. 3504 of 2007 was dismissed in the Supreme Court, there is no necessity of issuing show cause notice or to hear the Page 3 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 petitioner personally. Only the orders of the Courts have been carried out. Though the petitioner got appointment on the basis of selection, the process of recruitment has been declared null and void by the Court of Law. Moreover, the Govt. made a policy decision to disengage them. Hence, there is no need of personal hearing. 42. Additionally, after disposal of WP(C) No. 11748 of 2003 when the engagement of Swechhasebi Shikshya Sahayak after 26.09.2003 was declared null and void, 7187 persons were reselected for engagement. The Court vide order dated 23.12.2004 passed in WP(C) No.13958 of 2004 and batch of cases directed that the Swechhasebi Shikshya Sahayaks who have not been reselected in the current merit list shall continue until further orders. As such the petitioner continued in service. Therefore, the order of disengagement is not illegal. 43. With respect to the aforesaid discussion, this Court is not inclined to entertain the prayer of the petitioner in W.P.(C) No.5398 of 2018. The W.P.(C) No.5398 of 2018 is hereby dismissed. 44. Accordingly, all these Writ Petitions are dismissed. 45. Interim order, if any, passed earlier in any of the Writ Petitions stands vacated.” I. FACTUAL MATRIX OF THE CASE: 4. The brief facts of the case are as follows: (i) The instant review petition arises from the common judgment dated 22.12.2023 passed by this Court in W.P.(C) No.6290 of 2018, whereby the writ petition filed by the present Petitioner came to be dismissed alongside sixteen (16) other writ petitions, despite being factually and legally distinguishable. The Petitioner seeks a review of the said judgment on the grounds of non-consideration of material facts, misapplication of legal Page 4 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 principles, and failure to appreciate the distinct factual and legal substratum peculiar to her case. (ii) Pursuant to an advertisement dated 25.03.2003 issued by the Director, Elementary Education, Odisha, in exercise of powers under the extant recruitment policy for engagement of Swechhasevi Shikshya Sahayaks (SSS), applications were invited for filling up sanctioned posts of primary teachers across various districts. The Petitioner, belonging to the Scheduled Caste (SC) category, and being fully eligible under the Matriculation with C.T. qualification, applied in due time and was subsequently selected through a valid selection process. She was engaged vide Order No. 209 dated 10.02.2004 and joined Jalsahi Primary School under Kusumi Block, Rairangpur Education District, discharging her duties continuously and satisfactorily thereafter. (iii) The recruitment process initiated by the 2003 advertisement provided for reservation as per the Odisha Reservation of Vacancies Act, 1975. Notably, sixteen (16) posts were earmarked for Scheduled Caste women under the Matric C.T. category. However, during the first phase of engagement, only trained candidates were considered, and no SC women with requisite training qualifications were found to be available at that time. Consequently, while four (4) trained SC male candidates and three (3) SC candidates with B.A., B.Ed. qualifications were engaged, no trained SC women candidates were appointed, due to their non-availability—a fact substantiated by an RTI Page 5 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 response dated 02.11.2016 from the District Project Office, SSA, Mayurbhanj. (iv) In light of the absence of trained SC women candidates and in conformity with the policy permitting untrained SC/ST candidates to be considered eligible, the Petitioner, as an untrained SC woman candidate, was selected and engaged in the first phase, thereby filling up one of the sixteen posts reserved for SC women. Her engagement was thus valid, lawful, and compliant with the extant recruitment guidelines. (v) On 26.09.2003, the State Government issued directions for engagement of SSS candidates against 15,682 newly created posts from the select list prepared under the 2003 advertisement. However, this Circular was subsequently quashed by this Hon’ble Court in W.P.(C) No.11748 of 2003, vide order dated 29.04.2004, with a direction to issue a fresh advertisement for filling up the said posts. It is significant to note that the Petitioner’s engagement occurred on 10.02.2004—prior to the judgment in W.P.(C) No.11748 of 2003 and under the aegis of the original advertisement dated 25.03.2003, in respect of previously sanctioned and notified vacancies, not the additional 15,682 posts. (vi) In compliance with the aforesaid judgment, the State Government issued a fresh advertisement for filling up the 15,682 additional posts, of which 587 were allocated to Rairangpur Education District. Of these, twenty-one (21) posts were reserved for Scheduled Caste women candidates. Acting Page 6 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 on administrative advice, and in the interest of safeguarding her service, the Petitioner applied afresh as an in-service candidate and was duly placed at Serial No. 19 in the Provisional Merit List dated 10.12.2004 for SC women candidates under the trained and untrained Matric C.T. category. (vii) Despite her inclusion in the merit list, no appointment order was issued to any SC woman candidate from the said list. The administrative records revealed that these 21 posts were treated as reserved for in-service candidates, suggesting an intent to adjust existing SSS teachers—such as the Petitioner—within the said quota. However, no such adjustment was carried out, thereby resulting in the Petitioner’s exclusion from formal regularization. (viii) Shockingly, despite rendering over fourteen (14) years of blemish-free service and successfully completing her C.T. training in 2010 as per the Government’s in-service training policy, the Petitioner was arbitrarily disengaged vide Order No. 1051 dated 26.03.2018. The ostensible ground for such disengagement was that she had not been selected under the second recruitment process initiated after W.P.(C) No.11748 of 2003. This justification is legally untenable and factually flawed, as the Petitioner’s appointment was made against duly advertised and filled-up posts under the earlier and distinct recruitment process of 2003. Hence the instant Review Petition. Page 7 of 20 II. PETITIONER’S SUBMISSIONS: 5. It is submitted that the finding of this Court that the principles of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 natural justice were not violated for want of a show-cause notice is manifestly erroneous, as the order of disengagement is punitive and entails civil consequences, thereby mandating observance of audi alteram partem. The Petitioner could not have been disengaged merely on the ground of engagement after 26.09.2003 without a definitive finding as to the advertisement and post under which she was engaged. This material aspect has not been considered. 6. The conclusion that a hearing may be dispensed with if the “right result” can be achieved without it is inapplicable to the present case, since the Opposite Parties withheld essential records establishing the source and nature of the Petitioner’s engagement. Without such disclosure, a fair and correct adjudication was impossible, and the Petitioner’s right to be heard stood wrongfully denied, vitiating the disengagement. 7. The order dated 29.04.2004 in W.P.(C) No.11748 of 2003 has no application to the Petitioner’s case. In Rairangpur Education District, 419 posts were advertised on 25.03.2003, including 16 posts reserved for SC women under the Matric C.T./Matric category. As no trained SC women candidates had applied, Opposite Party No.4 validly issued engagement orders on 10.02.2004 in favour of 16 untrained SC women candidates, including the Petitioner, after all trained candidates were engaged. The Petitioner’s appointment thus arose Page 8 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 independently of the 15,682 posts directed to be filled up later, a distinction overlooked in the impugned judgment. 8. This Court also did not advert to the 21 posts reserved for SC women candidates under the second advertisement for 587 posts issued pursuant to W.P.(C) No.11748 of 2003. The Petitioner was provisionally selected at Serial No.19, yet no appointment was made against those posts on the pretext that they were “reserved for in- service candidates.” Neither the advertisement, nor any official record, specified such reservation, and no evidence of appointments made thereunder was produced. This omission vitiated the factual basis of the adjudication. 9. The 16 posts reserved for SC women candidates under the first advertisement dated 25.03.2003 were never merged with the 15,682 posts advertised subsequently. Those posts had already been filled up through valid engagement of the Petitioner and 15 others, while the merit list remained operative. The second advertisement was a separate recruitment exercise limited to 587 posts. Failure to consider this crucial distinction has led to an error apparent on the face of the record, warranting review. 10. Lastly, no adverse inference was drawn against the Opposite Parties for non-production of vital records, including the second advertisement, the final selection list of 16 SC women candidates under the first advertisement, and the final selection list for 21 SC women candidates under the second. The Petitioner’s consistent case—that she was engaged against one of the 16 SC women posts Page 9 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 under the first advertisement—remains uncontroverted. Non- consideration of these material documents and facts has occasioned a grave miscarriage of justice, meriting review of the judgment dated 22.12.2023. III. SUBMISSIONS OF THE OPPOSITE PARTIES: 11. Learned counsel for the Opposite Parties/ State earnestly made the following submissions in support of his contentions: (i) The Opposite Party No.5 submitted that pursuant to the Advertisement dated 25.03.2003, only 569 trained candidates were selected and engaged in Mayurbhanj District. As the Petitioner was an untrained candidate, she was not appointed under the said advertisement. It is further stated that the Petitioner was subsequently engaged vide Order No.209 dated 10.02.2004, issued in pursuance of Government Letter No.894 dated 26.09.2003 of the School and Mass Education Department, Odisha. The process of engagement of trained candidates in Mayurbhanj District had been completed by the end of August, 2003, wherein 225 trained candidates, including 7 Scheduled Caste candidates, were engaged under the Rairangpur Education District. (ii) It is further contended that the Petitioner’s engagement was made against one of the 15,682 posts created by the Government pursuant to the Notification dated 26.09.2003, which was subsequently quashed by this Hon’ble Court by order dated 29.04.2004 in W.P.(C) No.11748 of 2003, directing the authorities Page 10 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 to publish a fresh advertisement for engagement of Swechhasevi Shikshya Sahayaks. The said order, when challenged before the Hon’ble Supreme Court in S.L.P. No.3504 of 2007, was dismissed on 16.08.2013. (iii) It is further submitted that this Court, by order dated 23.12.2004 in W.P.(C) No.13958 of 2004, directed that those Swechhasevi Shikshya Sahayaks appointed pursuant to the Notification dated 26.09.2003 be allowed to continue in service until further orders. In compliance therewith, the Petitioner was permitted to continue. The Petitioner thereafter applied afresh under the second advertisement, and in the said process, her name appeared at Serial No.19 of the provisional merit list under the category of Scheduled Caste Matric C.T. Women candidates. It was, however, decided that the 21 posts reserved for SC Women Matric C.T. candidates under the second advertisement were meant for in-service candidates. (iv) The Opposite Party submits that the Petitioner’s engagement was, therefore, subsequent to 26.09.2003 and made pursuant to Notification No.894 dated 26.09.2003, which had already been set aside by this Court. Her continuance was only by virtue of the interim order dated 23.12.2004 in W.P.(C) No.13958 of 2004, and upon dismissal of the S.L.P., the order of disengagement was issued in compliance with the final judicial directions. Hence, the present review petition is not maintainable, there being no error apparent on the face of the record or any ground warranting Page 11 of 20 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 reconsideration of the matter already adjudicated by this Hon’ble Court. (v) It is further submitted that the present Review Petition is barred by limitation, having been filed beyond the prescribed period of ninety (90) days from the date of the impugned judgment dated 22.12.2023. It is contended that the Petitioner has not demonstrated any error apparent on the face of the record, nor has she brought forth any new or material fact which was not within her knowledge or could not, with due diligence, have been produced at the time of hearing of the writ petition. The averments contained in the Review Petition are a verbatim reiteration of the pleadings and grounds already raised and adjudicated upon in the original writ proceedings, and therefore, no ground for review under Order XLVII Rule 1 of the Code of Civil Procedure is made out. (vi) It is further urged that the issue regarding non-issuance of show-cause notice prior to disengagement has already been considered and conclusively dealt with in the impugned
Legal Reasoning
judgment dated 22.12.2023. The contentions now advanced under Grounds A, B, and C of the Review Petition stand fully addressed and elaborately discussed in paragraphs 17, 35, 37, 38, 39, 40, and 41 of the said judgment. In view of such detailed adjudication, there remains no scope for reconsideration or interference with the impugned decision. Hence, it is respectfully submitted that Page 12 of 20 the Review Petition, being devoid of merit and barred by Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 limitation, is liable to be dismissed. IV. COURT’S REASONING AND ANALYSIS: 12. The law of review is trite. A review is not an appeal in disguise; it lies only where there is a mistake or error apparent on the face of the record, discovery of new and important matter which, despite due diligence, was not within knowledge or could not be produced earlier, or for analogous reasons—Order XLVII Rule 1 CPC; as enunciated in Thungabhadra Industries Ltd. v. Govt. of A.P2., Meera Bhanja v. Nirmala Kumari Choudhury3; Kamlesh Verma v. Mayawati4. A palpable oversight of vital material or a glaring misapplication of controlling law which does not require a long- drawn process of ratiocination qualifies as an error apparent; re- arguing what has been argued is proscribed. 13. The State has raised a plea of delay. Having considered the chronology and the explanation tendered, and bearing in mind that the gravamen is an asserted non-consideration of material already on record in a batch disposal, this Court is persuaded to condone the delay in the interests of justice. The objection on maintainability is thus overruled. This Court’s power to review its own judgment to rectify palpable errors, independent of but not inconsistent with Order XLVII, is recognised in Shivdeo Singh v. State of Punjab5