The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 19875 of 2019 1. Benudhara Behera, aged about 49 years, son of Narendra Behera of Netal, Gobindpur, P.O.: Godisahi, District: Cuttack, at present posted at Naugaon Fire Station, P.O.: Naugaon, District: Jagatsinghpur. 2. Amiya Kumar Bhuyan, aged about 48 years, son of Arakhita Bhuyan, At/P.O. Nadiabarni, via. Kariolopatna, District: Kendrapara, at present posted at Jujomura Fire Station, P.O.: Jujomura, District: Sambalpur. 3. Subash Kumar Patra, aged about 46 years, son of Late Udayanath Patra, At: Brit Colony, P.O./P.S. Badagada, District: Khurda, at present posted at Kanas Fire Station, P.O.: Kanas, Ditrict: Puri. 4. Dilip Kumar Nanda, aged about 51 years, son of Krushna Chandra Nanda, At.Lunghar (SKSpur Sasana P.O. Panditagaon, P.S. Khalikote, District: Ganjam, at present Hatibandha Sahi HBS-109 P.O. GPO, Berhampur, District: Ganjam. -Versus- …Petitioners 1. State of Odisha, represented through its Commissioner-cum- Secretary, Home Department, Secretariat Building, Bhubaneswar, District: Khurda. 2. Director general and Inspector General of Police, (Home
Legal Reasoning
Guard and Fire Service),Orissa, At/P.O.: Buxi Bazar, District: Cuttack. W.P.(C) No.19875 of 2019 Page 1 of 11 3. The Chief Fire Officer, Odisha, Cuttack, At/P.O.: Buxi Bazar, District: Cuttack. 4. The Principal, Odisha Fire service Training Institute (OFSTI), Bhubaneswar, District: Khurda. 5. The Chairman-cum-Fire Officer, Central Selection Board, Fire Service, Odisha, Cuttack, At/P.O.: Buxi Bazar, District: Cuttack. 6. Abhaya Kumar Swain, aged about 52 years, son of Babaji Charan swain of village Tikarpara, P.O. Panchapalli, District: Jagatsinghpur, at present working as Leading Fireman, At.Rajnagar Fire Station, At/P.O.: Rajnagar, District: Cuttack. 7. Bhimsen Behera, aged about 55 years, son of Tapan Behera At/P.O. Rabingia P.S. Baliguda, via. Barakhana, District: Phulbani 8. Harekrushna Mohapatra, presently working as Leading Fireman, Bhadrak Fire Station At. Bhadrak Fire Station, P.O. Charampa, P.S. Bhadrak, District: Bhadrak. 9. Kailash Ch. Pradhan, presently working as Driver Havildar, Puri Fire Station, At/P.O.: Puri, District: Puri. 10. Akhil Kumar Sahoo, presently working as Leading Fireman Kuanpal Fire Station At/P.O. Kuanpal, P.S. Kuanpal, District: Cuttack. …Opp. Parties 11. Prasanta Kumar Nanda, aged about 51 years, son of Sital Prasad Nanda At. Kundi, P.O. Kumuda Jeypur, P .S. Mahanga, District: Cuttack. W.P.(C) No.19875 of 2019 Page 2 of 11 12. Subhendra Kumar Swain, aged about 49 years, son of late Rankamani Swain At/P.O. Babebira, P.S. Attabira, District: Bargarh. 13. Kamala Kanta Puhan, aged about 48 years, son of Bhagaban Puhan, At. Purusandha, P.O. Badahota Tilochanpur, P.S. Agarpada, District: Bhadrak. 14. Fhruba Charan Goi, son of Dullab Goi, At/P.O./P.S. Balichandrapur, District: Kendrapara, at present working as Driver, Pattamundai Fire Station, At/P.O./P.S. Pattamundai, District: Kendrapara. Advocates appeared in these cases: For Petitioners: For Opposite Parties No.1 to 5: … Proforma Opp. parties
Legal Reasoning
Mr. Budhadev Routray, Senior Advocate Mr. S. Sekhar, Advocate Mr. R.N. Mishra, Addl. Govt. Advocate For Opposite Parties No.9 & 10: Mr. Kalyan Patnaik, Advocate For Intervener: Ms.Gayatri Das, Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 11.09.2024 Chakradhari Sharan Singh, CJ. The present writ petition under Article 226 and 227 of the Constitution of India has been filed for recall of a common judgment W.P.(C) No.19875 of 2019 Page 3 of 11 and order dated 06.07.2017 passed by a co-ordinate Bench of this Court in W.P.(C) No.13566 of 2015 (Abhaya Kumar Swain Vs. State of Odisha and Others) and batch including Bhimasen Behera v. State of Odisha, reported in 2017 SCC OnLine Ori 418 = (2017) 124 CLT 776. 2. It is the case of the petitioners that though they are adversely affected by the said common judgment dated 06.07.2017, but they were not impleaded as parties in the writ proceeding and were thus not heard, before an order passed by the Odisha Administrative Tribunal (“the Tribunal”, in short) was set aside and further the State Government was directed not to extend promotion to the rank of Assistant Station Officer from the select list prepared on the basis of selection conducted in the year 2007. 3. It is the petitioners’ case that their names figured in the selection list of the year 2007 and they had undergone training course and had successfully completed the training course for the said promotional post. However, in view of the said common judgment dated 06.07.2017, the petitioners are deprived of continuing in promotional post of Assistant Station Officer. The order of this Court having been passed without bare impleadment, adversely affecting their rights, needs to be recalled. 4. The admitted facts, germane for consideration in the present matters, are that the I.G. of Police, Fire Service, Odisha had intimated the Fire Officer, Odisha, Cuttack to prepare a select list for filling up the post of Assistant Station Officer by way of promotion by following W.P.(C) No.19875 of 2019 Page 4 of 11 Rule 660 of the Police Manual. It is to be noted that there existed no regular service rules governing promotion to the post of Assistant Station Officer, Fire Services and accordingly in principle it was decided to adopt the procedure prescribed under Rule 660 of the Police Manual which lays down the procedure for appointment of Assistant Sub-Inspector of Police. As per the said communication dated 13.08.2007, a pre-promotional selection test (written) (‘PPT’, in short) was to be conducted in two subjects viz., (a) Technical knowledge and (b) English and Odia translation. It further prescribes that minimum qualifying marks would be 50% to be scored in each of the two subjects. Further, the result of PPT shall remain valid for a period of three years or till framing of the cadre Rules by the Government, whichever was earlier. PPT was held and the result of such candidates (310 in number) was published, who had scored 50% marks in each of the subjects. Based on vacancy position, initially 20 candidates were promoted to the post of Assistant Station Officer. Later, certain other promotions were granted in October, 2010 and November, 2010. 5. It appears that a question arose as regards validity of the select list prepared in 2007. The IG of Police, Personnel, Odisha communicated to the IG of Police, Fire Service, Odisha that though nothing was mentioned in the Police Manual as regards the validity of select test of the written test, letter dated 21.04.2001 issued by the Home Department stipulates about validity of Trade Test Board in respect of Technical Service in PMT and Signal Establishments. According to the said letter, the result of the Trade Test Board shall W.P.(C) No.19875 of 2019 Page 5 of 11 remain valid for a period of three years. It is pertinent to note that in the initial communication itself dated 13.08.2017, it was mentioned specifically that the result of PPT shall remain valid for a period of three years. 6. An original application was filed giving rise to OA No.3307 (C) of 2010 by such candidates whose names had figured in 2007 select list seeking a relief for recommending their names to undergo Assistant Station Officer course of training which was disposed of with a direction to consider the representation. The representation was rejected. Later, some candidates who had not scored 50% marks filed applications before the Tribunal seeking direction to prepare a fresh list of candidates who had secured 30% marks in their aggregate. Altogether 44 such original applications were heard and dismissed by a common order passed by the Tribunal on 19.12.2014. 7. On 26.02.2015, orders were issued with a direction to conduct fresh PPT for filling up of 39 vacancies of Assistant Station Officers. The said order dated 26.02.2015 was challenged by such candidates whose names figured in the select list. The Tribunal allowed the original applications setting aside the said order dated 26.02.2015 and directed the State to act upon the select list prepared on 16.10.2007 for the purpose of giving promotion to the rank of Assistant Station Officer, by a judgment dated 24.06.2015. 8. The candidates who were unsuccessful in the PPT challenged the judgment of the Tribunal dated 19.12.2014 by filing writ petition W.P.(C) No.19875 of 2019 Page 6 of 11 giving rise to W.P.(C) No.13566 of 2015 and also the order dated 24.06.2015 passed in OA No.751 (C) of 2015 and others. It was in compliance of the Tribunal’s order dated 24.06.2015 that 34 candidates from the select list of 2007 were shortlisted to undergo training for the purpose of promotion to the post of Assistant Station Officer. 9. The order passed by the Tribunal dated 19.12.2014 in OA No.561 (C) of 2012 and order dated 24.06.2015 passed in OA No.751 (C) of 2015 were stayed by this Court by an order dated 27.04.2016 passed in W.P.(C) No.13566 of 2015. The said writ petition i.e., W.P.(C) No.13566 of 2015 came to be disposed of by a judgment dated 06.07.2017 setting aside the order of the Tribunal dated 24.06.2015 whereby the State was directed to grant promotion from 2007 list and had quashed the order dated 26.02.2015 whereby fresh PPT was proposed to be held. A co-ordinate Bench of this Court by the said order dated 06.07.2017 issued certain directions to the State of Odisha for framing of Rules also. The said judgment of this Court dated 06.07.2017 passed in W.P.(C) No.13566 of 2015 came to be challenged by filing special leave petition giving rise to SLP (C) No.25112 of 2017 by pro forma opposite parties No.11 to 13 whose case was identical to the cases of the present petitioners. The said SLP was dismissed by the Supreme Court in the following terms: “Heard. We do not see any merit in this special leave petition which is accordingly dismissed. After order of dismissal is passed, learned counsel for the petitioner seeks liberty to withdraw the W.P.(C) No.19875 of 2019 Page 7 of 11 special leave petition and pursue the matter with the authority concerned which course is not permissible.” 10. We have heard learned counsel for the parties at length. 11. Learned counsel appearing on behalf of the petitioners has submitted that the impugned judgment and order rendered by this Court has adversely affected the interest of these petitioners who were not impleaded as parties and therefore this Court should recall and review the said decision. He has relied on the Supreme Court’s decision in case of Pohla Singh @ Pohla Ram (d) by Lrs. and others v. State of Punjab and others, (2004) 6 SCC 126. He has also argued that an order passed in the absence of necessary parties is a nullity and does not have a binding effect. He has placed reliance on the decision in case of The Employees State Insurance Corporation and Ors. v. Key Dee Cold Storage Pvt. Ltd., AIR 2022 SC 2550; Khetrabasi Biswal v. Ajaya Kumar Baral and Ors., (2004) 1 SCC 317. He has further argued that the doctrine of merger, in the present case, does not apply despite dismissal of SLP by the Supreme Court in the present set of facts and dismissal of SLP is no bar for review of the judgment. He has relied on the Supreme Court’s decision in case of Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., 2019 (4) SCC 376 and Kunhayammed and Ors v. State of Kerala and Ors., AIR 2000 (SC) 2587. 12. Per contra, it has been argued on behalf of the State that the SLP was dismissed on merit by an order dated 10.10.2017. He has W.P.(C) No.19875 of 2019 Page 8 of 11 submitted that this Court’s judgment dated 06.07.2017 attained finality with the passing of the order by the Supreme Court on 10.10.2017 and it is not open now for this Court to entertain the present writ petitions. He has placed reliance on the Supreme Court’s decision in case of State of Maharashtra v. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463; Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386 and K. Rajamouli v. A.V.K.N. Swamy, (2001) 5 SCC 37. 13. After having heard learned counsel appearing on behalf of the petitioners and learned Additional Government Advocate (AGA) for the State, we are convinced that the SLP was dismissed by the Supreme Court against this Court’s order recall of which is being sought in the present writ petition, on merits. Not only that the Supreme Court observed that there was no merit in the special leave petition, the liberty to withdraw the special leave petition and pursue the matter with the authority concerned was rejected, which course was found not permissible by the Supreme Court. 14. Learned AGA appearing on behalf of the State has rightly submitted that the order of this Court dated 06.07.2017 passed in W.P.(C) No.13566 of 2015 merged with the order of the Supreme Court and thus, attained finality with the passing of the order dated 10.10.2017 by the Supreme Court in SLP (C) No.25112 of 2017. 15. It will be useful to notice the Supreme Court’s decision in case of Abbai Maligai Partnership Firm (supra) wherein the Supreme Court has observed as under: W.P.(C) No.19875 of 2019 Page 9 of 11 the the to say the special the High Court exercised “4. The manner in which the learned Single Judge of review jurisdiction, after leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs 10,000 as costs.” W.P.(C) No.19875 of 2019 Page 10 of 11 16. In case of State of Maharashtra v. Prabhakar Bhikaji Ingle (supra), the Supreme Court deprecated the power of review exercised by an Administrative Tribunal despite dismissal of the SLP. 17.
Decision
In view of the above, we are of the considered opinion that this writ petition seeking recall of the judgment and order passed in W.P.(C) No.13566 of 2015 is not maintainable in the given facts and circumstances of the case particularly when the said judgment attained finality with the dismissal of SLP by the Supreme Court. 18. This writ petition is accordingly dismissed. (Chakradhari Sharan Singh) Chief Justice M.S. Raman, J. I agree. (M.S. Raman) Judge S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2024 19:19:22 W.P.(C) No.19875 of 2019 Page 11 of 11