The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 16480 of 2014 In the matter of an application under Articles 226 and 227 of the Constitution of India. Jamini Mohan Mohanty ....... Petitioner -Versus- Commissioner-cum-Secretary ....... in Water Resources Department, Bhubaneswar and others Opposite Parties For the Petitioners: - Mr. Laxmikanta Tripathy, Advocate For the Opp. Party: - Mr. Partha Sarathi Nayak, Addl. Govt. Advocate CORAM: THE HONOURABLE SHRI JUSTICE S.K. SAHOO AND THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA --------------------------------------------------------------------------------------- Date of Hearing and Judgment: 27.10.2025 --------------------------------------------------------------------------------------- By the Bench: This writ petition has been filed by the petitioner-Jamini Mohan Mohanty challenging the order dated 17.07.2014 passed by the Odisha Administrative Page 1 of 18 Tribunal, Cuttack Bench, Cuttack in O.A. No. 805 (C) of 2009 in dismissing the Original Application. 2.
Legal Reasoning
merely permits relaxation of any of the provision of the Rules in public interest, but not total shelving of the Rules. The orders do not show which rule or rules the Government considered necessary and expedient in public interest to relax. Rule-14 of OMS Rules, 1975 states “when the Government are of opinion that it is necessary or expedient so to do it may by order, for reasons to be recorded in writing relax any of the provisions of these rules in respect of any class or category of persons in public interest.” In the communication dated 28.06.1985 Govt. have regularized the applicant in public interest by virtue of relaxation provision under Rule-14 of OMS Rules, 1975. But no reasons have been cited or recorded in writing for such relaxation nor it states which rules of the OMS Rules, 1975 is relaxed for such regularization. Because of these deficiencies, we find that the regularization is not as per ratio of Hon’ble Apex Court judgment cited above. A proviso to Rule-13 further states that those appointed by relaxation under Rule-14 shall in that year, rank below validly recruited candidates. In that view of the matter Respondent No.3, a regularly recruited candidate will be treated as senior to the applicant. Respondent No.3 had joined on 25.05.1984, when regularization order of applicant (who joined on 29.02.1980) had not yet been issued and even when it was issued, it was not in conformity with the judgment of Hon’ble Apex Court in State of Orissa Vrs. Sukanti Mohapatra (supra). In view of We this, we do not find anything illegal or irregular in the issue of orders at Annexure-4 dated 24.03.2009 in which the gradation list has been issued giving Page 14 of 18 seniority to Respondent No.3 over the applicant and reverting the applicant to the post of Junior Assistant. Hence, we cannot entertain the relief, as has been prayed for by the applicant in this O.A.” In view of the aforementioned, Mr. Nayak’s submission is that the judgment of the Tribunal cannot be found fault with. 7. We have taken into consideration the entire admitted factual background of the present case and also considered the judgment cited at the Bar. We are of the view that the judgment relied upon by the respondent- State, which was the basis of the impugned order, is distinguishable from the fact of the present case. The Hon’ble Supreme Court in Sukanti Mohapatra (supra) case has interpreted Rule-14 on the basis of the factual premises that the appointment in that case was irregular. Therefore, the Court was of the view that irregular appointment cannot be regularized by employing the relaxation power provided under Rule-14 of the OMS Rules. However, the facts of the present case are completely distinguishable from that of the case in Sukanti Page 15 of 18 Mohapatra (supra). In this case, the appointment of the petitioner is not irregular. In fact, due recruitment process was followed. Seventeen candidates sponsored by the Employment Exchange had participated in the selection process and the petitioner was successful in the written test as well as viva voce test. When the process has already been started on 08.01.1980, in the midst of the process, on 19.01.1980, the Chairman, Arbitration Tribunal was declared as Head of the Department. After the Chairman attaining the status, all the appointment hence under him was obviously to be done under the OMS Rules. However, since the recruitment process was already initiated prior to 19.01.1980, the process went on and eventually the petitioner was selected and joined in the post of L.D. Assistant on 29.02.1980. Therefore, the appointment of the petitioner per se was not illegal. Subsequently, his appointment was validated under Rule-14 of the OMS Rules and promotions were also given. The petitioner put in twenty-nine years of service. When the objection to the provisional gradation list in the rank of Senior Assistant was invited, the opposite party no.3 did not file the objection, Page 16 of 18 resulting in the finalization of the gradation list. After lapse of thirteen years coming out from the deep slumber, the opposite party no.3 gave a representation to unsettle the seniority position, which was surprisingly entertained at such a belated stage and the impugned order was passed by the Chairman, Arbitration Tribunal. 8. In these fact scenarios of the case, taking clue from para-11 of the judgment of the Hon’ble Supreme Court in Sukanti Mohapatra (supra) and in the peculiar facts of the present case, we are inclined to mould the prayer made by the petitioner. It is relevant to mention that opposite party no.3 has chosen not to contest the present writ petition, which is obvious because he is not affected in any manner even if the writ petition is allowed. The petitioner has already superannuated from his service in the year 2013. Therefore, he would only be entitled to get pensionary benefits, in the event he succeeds in the present writ petition. Paragraph-11 of the judgment of the Hon’ble Supreme Court in Sukanti Mohapatra (supra) Page 17 of 18 hints towards moulding the prayer depending upon the facts of the case. 9. Accordingly, the impugned
Arguments
Heard Mr. Laxmikanta Tripathy, learned counsel appearing for the petitioner and Mr. Partha Sarathi Nayak, learned Additional Government Advocate for the State. 3. The Original Application was filed by the petitioner to quash the order dated 24.03.2009 passed by the Chairman-in-charge of Arbitration Tribunal, Odisha in which the petitioner was reverted to the post of Junior Assistant and was relieved from the Tribunal due to his reversion, with a further prayer to the opposite parties to allow him to continue in the post of Section Officer, Level-II of the Arbitration Tribunal, Odisha, Bhubaneswar. FACTS Of THE CASE: 4. A terse and brief narration of facts is provided for clear understanding and appreciation:- (a) The case of the petitioner, in short, is that the Arbitration Tribunal was created under the Irrigation and Power Department of Government of Odisha without giving Page 2 of 18 any definite status and the office was functioning under the Irrigation and Power Department. (b) In the year 1978, one post of L.D. Assistant and other posts was created. On 08.01.1980, the District Employment Exchange Officer was asked to sponsor the names of suitable candidates for the post of L.D. Assistant. On 24.01.1980, the Employment Exchange sponsored the names of seventeen candidates including the petitioner. (c) When the matter stood thus, on 19.01.1980, the Chairman, Arbitration Tribunal was declared as the Head of the Department with effect from 19.01.1980. (d) On 04.02.1980, the petitioner was selected and appointed for the single post of L.D. Assistant on the basis of the written test and interview, and the petitioner also joined in the said post on 29.02.1980. (e) The opposite party no.3-P.C. Kanungo was appointed about four years thereafter, i.e., on 25.04.1984 in the same post, as per the OMS Rules, 1975. Page 3 of 18 (f) The Chairman, Arbitration Tribunal, vide letter dated 18.03.1985, requested the F.A.-cum-Deputy Secretary to Govt., I & P Department to regularize the service of the petitioner under OMS Rules by virtue of the provision of Section 14 of the said OMS Rules. The F.A. –cum- Deputy Secretary to Govt., I & P Department in reference to the aforesaid letter dated 18.03.1985, regularized the service of the petitioner from the date of initial joining in the public interest by virtue of the relaxation provision of Rule 14 of the OMS Rules, 1975. After relaxation and regularization, the petitioner was promoted to the post of Senior Assistant on 11.07.1985 and at that point of time, the opposite party no.3 did not raise any objection to the said promotion of the petitioner as Senior Assistant. (g) Subsequently, the provisional gradation list was prepared in the rank of Senior Assistant and circulated inviting objections on 28.10.1995 wherein the petitioner’s name found place at sl.no.1 and the name of the opposite party no.3 found place at sl.no.2 and by then, the petitioner Page 4 of 18 had already completed ten years as Senior Assistant. At that stage as well, no objection was submitted by opposite party no.3 and, therefore, the said gradation list became final by order dated 19.12.1995. (h) The petitioner completed the Accounts training and cleared the Departmental test and was eligible for consideration for promotion to the higher rank and the D.P.C. also found the petitioner suitable and recommended his name for promotion and the petitioner was promoted to the rank of Section Officer, Level-II on 01.01.1996 and continued in the said post till the impugned order dated 24.03.2009 was passed. (i) It seems that the opposite party no.3 by coming out of deep slumber submitted a representation for fixation of his seniority over the petitioner after a long delay of thirteen years of finalization of the gradation list and twenty-three years of delay of regularization of the service of the petitioner so also after thirteen years of promotion of the petitioner to the rank of Section Officer, Level-II. The F.A. –cum- Deputy Secretary to Govt., I & P Department Page 5 of 18 directed the Chairman, Arbitration Tribunal to revise the gradation list dated 19.12.1995 and fixed the seniority of the opposite party no.3 over the petitioner after a long delay of thirteen years of finalization of the gradation list. (j) In accordance with the order of the F.A. –cum- Deputy Secretary to Govt., I & P Department dated 17.03.2009, the Chairman, Arbitration Tribunal on 24.03.2009, revised the final gradation list dated 19.12.1995 and placed the opposite party no.3 at sl.no.1 and placed the petitioner at sl.no.4 and not only the petitioner in the said order was reverted from the post of Section Officer to Junior Assistant, but also since there was no other sanctioned post of Junior Assistant available, the petitioner was relieved from his service after serving more than twenty-nine years and the petitioner remained out of service and without pay till he attained the age of superannuation on 30.03.2013. (k) The petitioner challenged the aforesaid order dated 24.03.2009 before the learned Odisha Administrative Page 6 of 18 Tribunal in O.A. No. 805 ' of 2009. The learned Tribunal rejected the Original Application. SUBMISSION OF THE PETITIONER: 5. It is the contention of the learned counsel for the petitioner that the learned Tribunal prior to passing of the impugned order passed an interim order on 30.03.2009, wherein the learned Tribunal stayed the impugned order of reversion dated 24.03.2009, if already not given effect to. However, even though the petitioner was reverted to the post of L.D. Assistant, but due to filling up of the said post from persons recruited through OMS cadre, no post was left vacant and the petitioner remained out of job. Though the petitioner in pursuance of the order dated 30.03.2009 passed by the learned Tribunal submitted his joining report to the Chairman, Arbitration Tribunal along with certified copy of the impugned order, but the Chairman, Arbitration Tribunal rejected the said joining report of the petitioner and the petitioner remained out of job without any engagement and without any salary. Accordingly, the learned Tribunal vide order dated 23.02.2012, directed the Page 7 of 18 opposite party nos.1 and 2 to adjust the petitioner against the vacant post of L.D. Assistant for drawl of his duty pay till final disposal of the Original Application without prejudice to the petitioner’s claim for continuance as Section Officer within a period of fifteen days. After one year of passing of such order by the learned Tribunal, the Government vide letter dated 07.02.2013 asked the petitioner to submit the joining report to the Chairman, Arbitration Tribunal for the post of L.D. Assistant and accordingly vide letter dated 14.02.2013, the Chairman, Arbitration Tribunal directed the petitioner to submit the joining report and the petitioner submitted the joining report on 18.02.2013 and requested for sanction of E.O.L till 30.03.2013 due to ill health of the petitioner and the petitioner retired on attaining the age of superannuation on 30.03.2013. The contention of the learned counsel for the petitioner is that when the name of the petitioner was sponsored by the Employment Exchange along with other sixteen candidates and at that point of time, the same was Page 8 of 18 the procedure followed for appointment to the post of Lower Division Assistant and the written test and interview were held and the petitioner got selected, no fault can be found in the process of appointment of the petitioner. Accordingly, the petitioner joined the post of L.D. Assistant rightly and the opposite party no.3 born in the cadre about four years thereafter and thus, the petitioner was senior to the opposite party no.3 in all respect. The petitioner’s service was regularized from the date of initial joining in the public interest by virtue of relaxation provision under Rule 14 of the OMS Rule, 1975 and thereafter he was also promoted to the Senior Assistant on 11.07.1985. The gradation list was prepared and at the time of preparation of the gradation list also, the opposite party no.3 never raised any objection and thus at a belated stage, considering his representation for fixation of seniority, which was about thirteen years after the finalization of the gradation list, the petitioner’s seniority should not have been disturbed and ultimately he should not have been reverted to a lower post and since no such post was available, he was relieved from his service. Page 9 of 18 Learned counsel for the petitioner submitted that the learned Tribunal was not justified in passing the impugned order and it is liable to be set aside. Since the petitioner has already retired from service and only he has to get the pensionary benefits, the impugned order should be set aside and the petitioner may be given necessary reliefs. SUBMISSION OF OPPOSITE PARTY: 6. Mr. Nayak, learned Additional Government Advocate for the State has placed reliance in the case of State of Orissa and others -Vrs.- Smt. Sukanti Mohapatra and others reported in Vol.75 (1993) Cuttack Law Times 842, wherein considering Rule 14 of the OMFS Rule, the issue raised, is as follows:- for consideration “3. In the backdrop of these provisions the is question which arises whether the appointments of candidates made dehors these rules could be „regularised‟ in exercise of the power of relaxation conferred on the government by the aforequoted Rule 14 of the rules, and if yes, whether such irregular been appointees whose regularized under Rule 14 could be placed above the regularly appointed incumbents in seniority on the basis of the length of service?” services have Page 10 of 18 The Hon’ble Supreme Court answered the issue in paragraphs-9, 10 and 11 of the aforesaid judgment, which reads as under:- relaxation of any of “9. In the present case also the appointments of the employees whose services are sought to be regularised were dehors the Rules. Rule 14 merely permits the provisions of the Rules in public interest but not the total shelving of the Rules. The orders do not say which rule or rules the Government considered necessary and expedient in public interest to relax. What has been done under the impugned orders is to regularise the illegal entry into service as if the Rules were not in existence. Besides the reasons for so doing are not set out nor is it clear how such regularisation can sub- serve public interest. Rule 14 has to be strictly construed and proper foundation must be laid for exercise of power under that rule. The Rules have a limited role to play, namely, to regulate the method of recruitment, and Rule 14 enables the Government to relax any of the requirements of the Rules pertaining to recruitment. The language of Rule 14 in the context of the objective of the Rules does not permit total suspension of the Rules and recruitment dehors the Rules. In the present case the recruitments had taken place years back in total disregard of the Rules and now what is sought to be done is to regularise the illegal entry in exercise of power under Rule 14. Rule 14, we are afraid, does not confer such a blanket power, its scope is limited to relaxing any rule, e. g., eligibility criteria, or the like, but it cannot be understood Page 11 of 18 fixation of to empower Government to throw the Rules overboard. If the rule is so construed it may not stand the test of Article 14 of the Constitution. The proviso to Rule 13 can come into play in the matter of seniority between candidates who have successfully cleared the examination and a candidate who cleared the examination after availing of the benefit of relaxation. We are, therefore, of the opinion that the in committed understanding the purport of Rule 14. Tribunal error no 10. The Tribunal’s order in review is assailed on the ground that it had no justification to reverse its earlier order by which it had held that the challenge was time-barred. The Tribunal exercised the review jurisdiction as it had failed to notice the correct provision and had, therefore applied the wrong provision in declaring the proceedings time-barred. The Tribunal rightly points out that since the cause of action had arisen prior to the establishment of the Tribunal, the proceeding stood governed by section 21(2)(a) and not section 21(1)(a) of the Administrative Tribunals Act, 1985, which it had wrongly invoked. We, therefore, see no merit in this challenge. 11. Now even though the Tribunal came to the that Rule 14 did not permit conclusion regularisation made under the impugned orders of January 3, 1985 and February 14, 1985, it, having regard to the, long service put in by the employees named in the said two orders and on compassionate considerations has supported the the regularisation under Article 162 of Constitution. It has moulded the relief on such Page 12 of 18 considerations. Since that part of the order has not been assailed and since the appellants cannot be worse of by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees. We may also clarify that any benefit derived by the irregular appointees under any interim orders contrary to the relief moulded by the Tribunal shall be adjusted and brought in tune with the said relief. The benefit of this relief, to the extent relevant, will be given to irregular appointees covered under both the impugned orders of January 3, 1985 and February 14, 1985.” Mr. Nayak, learned Addl. Govt. Advocate by relying upon the aforementioned judgment submits that the Hon’ble Supreme Court has already construed the scope and ambit of Rule-14 of OMS Rules. In the absence of any specific reason being assigned, the authority while exercising the relaxing power under Rule-14 of the OMS Rule cannot regularize an irregular appointment. He has relied upon the findings recorded by the learned Tribunal in the impugned order to elaborate his argument. The learned Tribunal has, inter alia, observed as under:- “In the Civil Appeal No. 1347 of 1993 arising out of SLP (C) No. 18926/1991 State of Orissa Vrs. Sukanti Mohapatra Hon‟ble Apex Court has held “Rule-14 of OMS Rules, 1975 requires that the reasons in support of action being taken in public interest must be stated in writing. Rule-14 Page 13 of 18
Decision
order dated 17.07.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 805 (C) of 2009 is hereby set aside and the respondent-State is directed to give the pensionary benefits to the petitioner forthwith. Except the pensionary benefits, the petitioner is not entitled to any other relief. 10. Granting the aforesaid modified relief to the petitioner, the present writ petition is partly allowed. (S.K. Sahoo) Judge (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 27th October, 2025/Ashok/Swarna Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2025 10:47:59 Page 18 of 18