The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29845 of 2023 In the matter of an application under Article 226 & 227 of the Constitution of India, 1950. ……………… Laxmidhar Majhi Petitioner …. -versus- State of Odisha & Others …. Opposite Parties For Petitioner: M/s. S. Mallik,P.C.Das,M. Mallik, S. Mallick, Adv For Opp. Parties: M/s. M.R. Mohanty Addl.Govt. Advocate PRESENT: THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 11.11.2025 and Date of Judgment: 11.11.2025 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. // 2 // 3. The present Writ Petition has been filed inter alia challenging the communication issued by the Government-Opp. party No.1 on 05.07.2023 under Annexure-7. 4. It is contended that Petitioner even though was eligible to get the benefit of promotion to the rank of Asst. Civil Supplies Officer, but the same was never extended till Petitioner attained the age of superannuation on 31.12.2020. However, pursuant to the order passed by the Hon’ble Apex Court on 16.12.2020 in S.L.P (Civil) Diary No.15398 of 2020 and after due consideration of the Petitioner’s claim, vide notification dt.08.01.2021 under Annexure-1, Petitioner was promoted notionally to the post of Asst. Civil Supplies Officer w.e.f 28.02.2006. However, in the said order, when it was indicated that Petitioner will not be entitled to get any arrear financial benefit for the period he has not actually worked in the post of ACSO, challenging such stipulation, Petitioner approached this Court by filing W.P.(C ) No.1869 of 2021. Page 2 of 15 // 3 // This Court vide order dt.27.07.2022 while disposing the Writ Petition held as follows:
Facts
15. Heard learned counsel for the parties. Perused the materials available on record. This Court after going through the same finds that the Petitioner was not only acquitted in the vigilance proceeding vide Judgment dtd 16.01.2018, but also he was exonerated one disciplinary proceeding vide order dtd 15.03.2014 under Annexure-4. In the other proceeding when the Petitioner was imposed with such punishment under Annexure-5, the same was challenged before the learned Tribunal and leaned Tribunal in its order under Annexure-6 while quashing the said order held the Petitioner entitled to get all service and financial benefits from the date those benefits were so held up due to pendency of the proceeding. 16. This Court also finds that the guideline issued by the GA Department on 18.02.1994 under Annexure-12 is not only relied on by the Petitioner, but also by the Opp. Party taking everything 17. Therefore, into account, this Court when proposed that the Petitioner will be entitled to get 50% of his arrear entitlement w.c.1.28.02.2006 till he attains the age of superannuation, leaned counsels appearing for both the Parties gave their consent to the said view of this Court. 18. In view of such stand taken by learned counsel appearing for the Parties, this Court while interfering with the impugned order did.08.01.2021 under Annexure-13 held that the Petitioner is entitled to get 50% of the financial benefit from for the age of 28.02.2006 till he attains this Court superannuation. Accordingly. while holding so, directs the Opp. Parties to calculate the benefit and release the same in favour of the Petitioner within a period of the period Page 3 of 15 // 4 // three (3) months from the date of receipt of this order. 4.1. Learned counsel appearing for the Petitioner contended that Petitioner was held eligible to get 50% of the financial benefit as due and admissible w.e.f. 28.02.2006 till he attained the age of superannuation and such an order was also passed on concession of the
Legal Reasoning
this Court in W.P.(C ) No.1869 of 2021. 5. Mr. M.R. Mohanty, learned Addl. Govt. Advocate on the other hand placing reliance on the stand taken in the counter affidavit contended that since in terms of the resolution issued by the Government on 26.02.1960 vide Annexure-A/1, Petitioner has not passed the Departmental Examination, Petitioner is not eligible and entitled to get the benefit of increment in the promotion post of ACSO. Since in terms of the said resolution, Petitioner admittedly has not passed the Departmental Examination, even if he was promoted to the post of ACSO, but he will not be entitled to get the benefit of increment. 5.1. Therefore, while considering the claim made by the Petitioner so forwarded under Annexure-4, when it was found that Petitioner has not passed the Departmental Examination, in terms of the provision contained under para-2(b) of the Resolution under Page 6 of 15 // 7 // Annexure-A/1, , Annexure-5 has been issued. Para-2(b) of the Resolution reads as follows: 2. Disqualification caused by failure at the Departmental examination: xxx xxx xxx (b) No officer of the Orissa Civil Supplies Service shall be entitled to draw a second increment until he has passed the examination in all the subjects by the higher standard completely and no Officer of subordinate Civil Supplies Service shall be allowed to draw second increment unless he has passed the examination in all the subjects by the lower standard completely. xxx xxx xxx 5.2. It is accordingly contended that since Petitioner has not passed the Departmental Examination, even though he is given the benefit of promotion to the rank of ACSO w.e.f 28.02.2006 vide notification dt.08.01.2021 under Annexure-1, but Petitioner is not eligible and entitled to get the benefit of 2nd increment till he attained the age of superannuation on 31.12.2020 in the said post. It is accordingly contended that no illegality or irregularity can be found with Annexure-5. Page 7 of 15 // 8 // 6. To the submission made by the learned Addl. Govt. Advocate, learned Counsel appearing for the Petitioner placing reliance on Para-1 of the self-same resolution contended that in special cases, Government has the power to relax the aforesaid stipulation. Since for the fault of the Department, Petitioner did not get the benefit of promotion till he attained the age of superannuation on 31.8.2020 and the benefit was only extended vide notification dt.08.01.2021 w.e.f 28.02.2006, Petitioner had no occasion to pass the Departmental Examination in terms of para-2(b). Since no fault lies on the part of the Petitioner for not completing the Departmental Examination, the ground on which Annexure-5 has been issued is not sustainable in the eye of law. 6.1. In support of his submission, reliance was placed to the following decisions: 1. Eureka Forbes Limited Vs. Allahabad Bank & Others, (2010) 6 SCC 193 Page 8 of 15 // 9 // 2. Calcutta State Transport Corporation & Others Vs. Ashit Chakraborty & Others, (2023) 19 SCC 22 3. Sadhana Singh Dangi & Others Vs. Pinki Asati & Others, Civil Appeal No.7781 of 2021 6.2. Hon’ble Supreme Court in the case of Eureka Forbes Limited in para 66 has held as follows: 66. The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations, In the present case Respondents 2 and 3 and the appellant the have acted hypothecated good, band now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant. The Bench of this Court in Ashok Kapil v hana Ullah referred to rule of mischief and while explaining the word "building", held as under: (SCC p. 346, para 11) together while disposing off "11. Stroud’s Judicial Dictionary (Vol. 1 of the 5th Ede) states that ’what is a building must always be a question of degree and circumstances, Quoting from Victoria City Corps. v. Bishop of Vancouver Island 12 (AC at p. 390), lexicographer the celebrated commented that ’the ordinary and natural meaning of the word "building" includes the fabric and the ground on which it stands In Black’s Law Dictionary (5th Edn.) the meaning of ’building’ is given as Page 9 of 15 // 10 // ’A structure or edifice enclosing a space within its walls, and usually, Ind not necessarily, covered with a roof’, (emphasis in original). The said description is a recognition of the fact that roof is not a necessary and indispensable adjunct for a building because there can be roofless buildings. So a building, even after losing the roof, can continue to be a building in its general meaning. Taking recourse to such general meaning in the present context would help to prevent a mischief" 6.3. Hon’ble Supreme Court in the case of Ashit Chakraborty in Paragraph-13 & 14 has held as follows: 13. It is not in dispute that Respondent 1 had exercised his right to receive pension under the 1990 Regulations in the year 1991. Thereafter, it was the duty of the Corporation to have given effect to the same. Mosely because were some wrong deductions from his salary and he was treated as member of the CPF Scheme, cannot be permitted to be raised as a ground to defeat his rightful claim. The pension was to start after retirement of the respondent. When the same was not released to him, immediately representation was made by him. As no response was received from the appellant, the wilt petition was thod 14. The argument that there are number of similarly situated employees who will also stake their claims, will not deter this Court to granting the relief to the respondent, which is legitimately due to him, Rather this argument shows that the Corporation was at fault in implementing the 1990 Regulations in the cases of number of employees though those were notified on 4-1-1991 and were given retrospective effect from 1-4-1984. Technical objections are sought to be raised, which are not tenable. For any fault on the part of the Corporation, the employees cannot be made to suffer. Page 10 of 15 // 11 // 6.4. Hon’ble Supreme Court in the case of Sadhana Singh Dangi & Others in paragraph-21 has held as follows: 21. We now turn to the issue presented by Mr. Rungta, learned Senior Advocate, for our consideration in that is quite clear It the candidates represented by Mr. Rungta were placed at a the select List but higher position given not they were unfortunately appointments along with the candidates who were at a lower level. These candidates cannot be held responsible for the anomaly which has arisen as a result of In order to do complete justice, we, their late appointments. therefore, direct: a. All candidates who were at higher positions in merit but were appointed later shall be deemed to have been appointed on the earliest of the dates when their juniors or candidates at lower levels were appointed. b. Their seniority shall be reckoned from of appointment and not from their actual date of appointments. such deemed date c. The issue of probation for all categories of candidates shall be considered together as one single batch and the issue of probation shall not be segregated amongst the members of the batch. d. All such candidates who were at higher levels of the revised list shall be entitled to their salaries and emoluments for the period of Page 11 of 15 // 12 // about seven months for which they were deprived of service. 7. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that Petitioner while continuing in service retired on attaining the age of superannuation on 31.08.2020 in the post of Inspector of Supplies. However, pursuant to the order passed by the Apex Court in SLP (Civil) Diary No.15398 of 2020, Petitioner was extended with the benefit of promotion to the rank of ACSO w.e.f 28.02.2006 vide Notification dt.08.01.2021 under Annexure-1. 7.1. Such a benefit was extended on the condition that all the benefits will be extended on notional basis. In the said notification, nothing was indicated that Petitioner since has not passed the Departmental Examination, he will not be eligible to get the benefit of increment. 7.2. Challenging such stipulation with regard to extension of benefit on notional basis, Petitioner approached this Court by filing W.P.(C ) No.1869 of 2021. Page 12 of 15 // 13 // This Court vide order dt.27.07.2022 while holding the stipulation to extend the benefit on notional basis as illegal held the Petitioner entitled to get 50% of his arrear entitlement w.e.f 28.02.2006 till he attained the age of superannuation. Such an order entitling the Petitioner to get 50% of the arrear entitlement was also passed on the concession made by the leaned Counsel for the State. Basing on such order passed by this Court, Petitioner’s arrear entitlement was also calculated and forwarded to the Government vide Annexure-4. 7.3. Since in the notification issued on 08.01.2021 under Annexure-1, nothing was indicated that Petitioner is not eligible to get the benefit of increment as against the promotional post which was extended in his favour w.e.f 28.02.2006 and it was clearly indicated that Petitioner will get all the benefits on notional basis, it is the view of this Court that the ground taken in Annexure- 5 on the face of the stipulation contained in Anenxure-1 is not sustainable. Page 13 of 15 // 14 // 7.4. Not only that, challenging the extension of the benefit on notional basis vide Annexure-1, Petitioner approached this Court in W.P.(C ) No.1869 of 2021. No such fact was brought to the notice of this Court that, Petitioner is not entitled to get the benefit of increment in terms of para-2(b) of the resolution dt.26.02.1960 under Annexure-A/1. In the said Writ Petition when this Court held the Petitioner entitled to get 50% of the arrear entitlement, the same was agreed upon by the learned State Counsel. 7.5. In view of the nature of order passed vide notification dt.07.01.2021 under Annexure-1 and the order passed by this Court on 27.07.2022 in W.P.(C ) No.1869 of 2021, it is the view of this Court that Petitioner cannot be deprived of the benefit of increment on the ground that he has not passed the Departmental Examination in terms of Para-2(b) of the Resolution. Not only that since Petitioner was extended with the benefit of promotion after his retirement but w.e.f 28.02.2006, Page 14 of 15 // 15 // Petitioner had no scope to pass the Departmental Examination. 7.6. Therefore, this Court is inclined to quash the stipulation contained in the impugned letter dt.05.07.2023 so issued under Annexure-5. While quashing the same, this Court directs Opp. party No.1 to extend the benefit as due and admissible in terms of order dt.27.08.2022 so passed in W.P.(C ) No.1869 of 2021, as expeditiously as possible preferably within a period of two (2) months from the date of receipt of this order. 7.7.
Arguments
learned counsel appearing for the State. 4.2. It is also contended that in terms of the said order, Petitioner’s arrear entitlement was duly calculated vide Annexure-4 and it was forwarded to the Government-Opp. Party No.1, but without proper appreciation of the nature of order passed on 08.01.2021 under Annexure-1 and order passed by this Court on 27.07.2022 in W.P.(C) No.1869 of 2021, the impugned communication has been issued on dt.05.07.2023 under Annexure-7, holding therein that, Petitioner is not entitled to get the benefit of increment as against the post of ACSO, as he has not passed the Departmental examination. Page 4 of 15 // 5 // 4.3. It is contended that while extending the benefit of promotion vide order dt.08.01.2021, nothing was indicated that the Petitioner will not get the benefit of increment and it was only indicated that all arrear financial benefit will be extended on notional basis. When such a stipulation was challenged before this Court in W.P.(C ) No.1869 of 2021, this Court on concession of the learned Counsels appearing for the parties, held that Petitioner is entitled to get 50% of the arrear financial benefit as due and admissible w.e.f 28.02.2006. It is accordingly contended that since in the order dt.08.01.2021, nothing was indicated with regard to ineligibility of the Petitioner to get the benefit of increment as against the post of ACSO, after disposal of the matter by this Court on concession vide order dt.27.07.2022, the ground indicated in Annexure-7 that Petitioner since has not passed the Departmental Examination, he will not be eligible to get the benefit of increment, is not sustainable in the eye of law and such a stipulation cannot be made after passing of the order Page 5 of 15 // 6 // under Annexure-1 and the order passed on concession by
Decision
The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 11th November, 2025 /Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaton of order Location: high court of orissa, cuttack Date: 21-Nov-2025 12:55:32 Page 15 of 15