The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.22859 of 2024 Dr. Krushna Ballav Barik ..... Petitioner State of Odisha & Anr. -versus- ..... Represented By Adv. – Subhadutta Routray Opposite Parties Represented By Adv. – M.R. Mohanty, A.G.A. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 25.02.2025 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Govt. Advocate for the State-Opposite Parties. Perused the writ application as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to: i) Admit the writ application. ii) Call for the record. iii) Issue Rule Nisi calling upon the opposite parties more particularly the opposite party No. 1 to show cause as to why the impugned order of rejection dated 11.06.2024 under Annexure: 10 shall not be quashed. Page 1 of 7. iv) If the opposite parties do not show cause or show insufficient cause issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/ directions quashing the impugned order of rejection dated 11.06.2024 under Annexure: 10 issued by Opposite Party No.1. v) Issue a writ in the nature of mandamus or any other the opposite writ/writs direction/directions directing parties to regularize the service of the petitioner from the date of initial appointment and extend all service and financial benefits as has been directed by the Hon’ble Supreme Court in SLP (C) No.4253/2021 and batch vide Order dated 16.04.2024 under Annexure: 8 and the order dated 22.04.2024 passed by the Hon’ble Division Bench in W.P. (C) No.5960/2018 under Annexure:9. vi) And/or pass any other order/orders, direction/ directions as this Hon’ble Court deems fit and proper for the ends of justice.” 4.
Legal Reasoning
The factual background leading to filing of the present writ application at the instance of the Petitioner in a nut shell is that initially the Petitioner was selected for the post of Homeopathic Medical Officer against the existing vacancies on being sponsored by the Employment Exchange on 27.01.1994. Thereafter, the Petitioner was engaged on contractual basis w.e.f. 23.08.1996. On 11.02.2009, the Petitioner along with the other Homeopathic Medical Officers including one Dr.Gitanjali Satpathy was regularized in service with prospective effect i.e. w.e.f. 25.12.2008. Being aggrieved by the date of regularization, the Petitioner preferred an O.A. before the learned Odisha Administrative Tribunal bearing O.A. No.1019 of 2015 with a specific prayer to antedate the date of regularization w.e.f. date of
Legal Reasoning
initial joining. The learned O.A.T. after hearing the learned counsels appearing for the parties disposed of the O.A. on 12.05.2017 with a Page 2 of 7. direction to the Opposite Parties to regularize the service of the applicants-petitioners from the date on which the applicants- petitioners were allowed to continue as HMOs on contractual basis without any break, on notional basis by modifying the prospective regularization orders w.e.f. 25.12.2008 and accordingly, calculate the pay and other benefits as is due and admissible to the applicants- petitioners. However, it was further directed the actual service and financial benefits shall be drawn by the applicants from 25.12.2008 i.e. the actual date of regularization. 5. Being aggrieved by the order dated 12.05.2017 passed in O.A. No.1019 of 2015, the present Petitioner filed a writ petition bearing W.P.(C) No.5960 of 2018 before a Hon’ble Division Bench of this Court. The Hon’ble Division Bench vide order dated 22.04.2024
Decision
disposed of the writ petition in terms of the judgment rendered by the Hon’ble Apex Court on 16.04.2024 in SLP(C) No.4253 of 2021. 6. Learned counsel for the Petitioner at this juncture contended that the order dated 22.04.2024 passed in W.P.(C) No.5960 of 2018 was challenged before the Hon’ble Supreme Court by the State- Opposite Parties by filing SLP (Diary) No.54205 of 2024. The said SLP was dismissed by the Hon’ble Supreme Court vide order dated 13.12.2024. As such, order dated 22.04.2024 passed in W.P.(C) No.5960 of 2018 has attained finality in the meantime. In such view of the matter, learned counsel for the petitioner submitted that the Opposite Parties were left with no other option but to implement the order passed by the Hon’ble Division Bench of this Court on 22.04.2024. 7. Learned counsel for the Petitioner further contended that after disposal of the above noted SLP thereby confirming the order passed Page 3 of 7. by the Hon’ble Division Bench of this Court, the Petitioner again approached the Opposite Parties to grant the relief in terms of the order passed by the Hon’ble Division Bench in W.P.(C) No.5960 of 2018. However, the Opposite Parties vide their order dated 11.06.2024 under Annexure-10 to the writ application have rejected the prayer of the Petitioner on the ground that while disposing of the SLP (C) No.4253 of 2021, the Hon’ble Supreme Court of India has observed that the said order was passed in the peculiar facts and circumstances of that case, however, the same shall not be treated as a precedent. Being aggrieved by such rejection of his prayer by the Opposite Parties under Annexure-10 to the writ application, the Petitioner has again approached this Court by filing the present writ application. 8. Learned Additional Govt. Advocate on the other hand contended that the Opposite Parties have not committed any illegality in passing order dated 11.06.2024. He further contended that the Petitioners were initially engaged on temporary basis. Therefore, they have no right to claim regularization. However, the Opposite Parties considering the service rendered by the Petitioner with similarly situated other persons were pleased to regularize their service w.e.f. 25.12.2008. He further contended that the facts of the Petitioner’s case is different than that of the case of the Petitioner who was before the Hon’ble Supreme Court in SLP (C) No.4253 of 2021. Therefore, both cases cannot be equated and treated at par. He further contended that since the order in SLP (C) No.4253 of 2021 was passed in the peculiar facts and circumstances of that case, it was further observed by the Hon’ble Supreme Court not to treat the said order as a precedent. Therefore, it is contended that the Opposite Parties have Page 4 of 7. not committed any illegality by not applying the ratio laid down in SLP (C) No.4253 of 2021 as the same could not have been treated as a precedent in view of the observations made by the Hon’ble Supreme Court. He further contended that after a careful examination of the facts of the Petitioner’s case, the Opposite Party No.1 has come to a conclusion that the Petitioner is not entitled to grant the relief claimed by him and accordingly, his prayer has been rejected by a reasoned order dated 11.06.2024 under Annexure-10 to the writ application. On such ground, learned counsel for the State submitted that the writ application filed by the Petitioner is devoid of merit and accordingly, the same should be dismissed. 9. Having heard the learned counsels appearing for the parties, on a careful analysis of the submissions made, further on a close scrutiny of the documents annexed to the writ application, this Court observes that the Petitioner being aggrieved by the rejection order dated 11.06.2024 under Annexure-10 has again approached this Court for a direction to the Opposite Parties to grant the relief as prayed for by him. On a careful analysis of the factual background of the present case, as has been narrated hereinabove, this Court observes that earlier the Petitioner was before the Tribunal and the Tribunal had disposed of the O.A. with certain directions which was challenged before this Court by filing a writ petition bearing W.P.(C) No.5960 of 2018 at the instance of the present Petitioner. The Hon’ble Division Bench vide their order dated 22.04.2024, after hearing the learned counsels appearing from both sides, have categorically directed that the Petitioner’s case be considered in terms of the judgment passed by the Hon’ble Supreme Court on 16.04.2024 in SLP(C) No.4253 of 2021. It further appears that as Page 5 of 7. against the order dated 22.04.2024, the State-Opposite Parties preferred an appeal before the Hon’ble Supreme Court by filing SLP (Diary) No.54205 of 2024, however, the Hon’ble Supreme Court was not inclined to interfere with order dated 22.04.2024 and accordingly, the SLP (Diary) No.54205 of 2024 has been dismissed vide order dated 13.12.2024. 10. In course of the argument, learned counsel for the Petitioner also produced another order arising out of the very same dispute wherein the State of Odisha had preferred an appeal before the Hon’ble Supreme Court in the case of one Priyambada Pattanaik & Anr. by filing SLP(C) No.10598 of 2024. In the aforesaid case, the question that arose for adjudication before the Hon’ble Supreme Court, was as to whether the previous order passed by the Hon’ble Supreme Court could be treated as a precedent considering the fact that identical facts are involved in the subsequent writ application. The Hon’ble Supreme Court while disposing of the above noted appeal vide order dated 09.09.2024 has given a very specific observation which is quoted hereinbelow:- “Although in the aforesaid order, it is stated that this order passed is in the peculiar facts and circumstances, however, it shall not be treated as a precedent, but since we find the same set of facts and circumstances arising out of the same State, the Special Leave Petition is disposed of in the same terms and conditions. Pending application(s), if any, shall stand disposed of.” 11. In view of the aforesaid analysis of the factual as well as the legal position, this Court is of the considered view that while rejecting the case of the Petitioner vide impugned order dated 11.06.2024 under Annexure-10, the Opposite Parties have not Page 6 of 7. specifically considered as to whether the case of the Petitioner is identical to the one involved in SLP (C) No.4253 of 2021. Moreover, the order dated 22.04.2024 passed in the W.P.(C) No.5960 of 2018 filed at the instance of the present Petitioner has been flouted to the extent that the Opposite Parties have failed to consider the case of the Petitioner in terms of the judgment dated 16.04.2024 passed by the Hon’ble Supreme Court in SLP (C) No.4253 of 2021. Further, it is evident that the order passed in W.P.(C) No.5960 of 2018 has attained finality as the SLP preferred against the said order has already been dismissed vide order dated 13.12.2024. In such view of the matter, this Court has no hesitation in setting aside the impugned order dated 11.06.2024 under Annexure-10. Accordingly, the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.1 to implement the judgment passed by the Hon’ble Division Bench on 22.04.2024 in W.P.(C) No.5960 of 2018 which has attained finality in the meantime within a period of three months from the date of communication of a certified copy of today’s order. 12. With the aforesaid observations/ directions, the writ application stands disposed of. 13. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Page 7 of 7. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 01-Mar-2025 14:33:07