The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.28669 of 2019 Saroj Kumar Mohanty …. Petitioner Represented by Adv.- Mr. K.P. Mishra, Adv. assisted by Mr. D.K. Mohanty, Adv. State of Odisha and others CORAM: -versus- …. Opposite Parties
Legal Reasoning
Represented by Adv.- Mr. S.B. Mohanty, AGA Order No. 22. JUSTICE DIXIT KRISHNA SHRIPAD JUSTICE ANANDA CHANDRA BEHERA
Decision
ORDER 31.10.2025 This writ petition was disposed off on 30.07.2025 by the Bench comprising of one of us (Dixit, J.) and Hon’ble Justice M.S. Sahoo. It was a dismissal order. Subsequently, the said judgment was recalled by that Bench vide order dated 12.09.2025 passed in RVWPET No.208 of 2025. For ease of reference, the said order is reproduced below: “This Review Petition is directed against the judgment dated 30.07.2025, whereby WP(C) No.28669 of 2019 was disposed off by us. 2. attention to the order dated 01.03.2023, which reads as under: Learned counsel appearing for the Review Petitioner draws our “ORDER 01.03.2023 Order No. 11. This matter is taken up through hybrid mode. 2. Put up this matter before a Bench where one of us (Mr.Justice M.S. Sahoo) is not a Member. Sd/- (DR. B.R. SARANGI) JUDGE Sd/- (M.S. SAHOO) JUDGE” Page 1 of 10 3. Learned counsel submits and we agree that in view of the above order, this Bench could not have disposed off the subject Writ Petition. Therefore, the other contentions in the Review Petition need not be examined by us. In the above circumstances, this Review Petition having been favoured, the judgment dated 30.07.2025 passed in WP(C) No.28669 of 2019 is recalled and as a consequence WP(C) No.28699 of 2019 is restored to the Board for being heard and disposed off by a Bench, which would not comprise of one of us, namely, Hon’ble Mr. Justice Mruganka Sekhar Sahoo. The RVWPET is disposed off accordingly.” 2 We have heard learned Sr. Advocate appearing for the petitioner and learned AGA representing the OPs. The recalled judgment being as can be is reproduced below in its entirety: facts of the case in brief are The background “The writ petition calls in question the order dated 24.04.2019 issued by the Registrar, Civil Court, Bhubaneswar communicating rejection of petitioner’s representation dated 16.05.2018 to regularize his services rejected by the learned District Judge, Khurda and order dated 22.06.2019 (as at Annexure-5 to the writ petition) passed by the opposite party no.3-Judge, Family Court, Bhubaneswar, keeping in abeyance earlier order dated 01.06.2019. The order dated 01.06.2019 was to continue the contract of engagement of petitioner. that an 2.1 ‘advertisement’ was issued dated 27.04.2012 by the Judge, Family Court, Bhubaneswar-opposite party no.3 for filling up of vacant posts of Junior Clerk (Record Keeper) and Junior Typist, one post each, to be engaged on contractual basis in the office of the Judge, Family Court, Bhubaneswar. The posts were earlier created pursuant to notification dated 17.05.2010 issued by the Government. 2.2 The petitioner was appointed as Junior Typist on contract basis to work in the office of the Judge, Family Court, Bhubaneswar for a period of one year with effect from 01.06.2012 in consolidated scale of pay of the Rs.5200/-. The appointment order dated 21.05.2012 appointment to be purely temporary that can be terminated at any time without notice and without assigning any reason thereof. The order dated 21.05.2012 was extended subsequently by orders dated 30.05.2013, 31.05.2014, 31.05.2015, 09.06.2016, 01.06.2017, 01.06.2018 and lastly on 01.06.2019 extending the period of contractual engagement of petitioner. 2.3 The order dated 01.06.2019 was kept in abeyance by the Judge, Family Court, Bhubaneswar by order dated 22.06.2019 that is also under challenge. The petitioner made a representation dated 16.05.2018 to the District Judge, Khurda seeking regularization of his services. The said representation was rejected by the District Judge, Khurda which is also under challenge. 3. The learned Senior Counsel appearing for the petitioner submitted indicated Page 2 of 10 that after the posts were created by the notification dated 17.05.2010, the Judge Family Court, Bhubaneswar advertised the posts on 27.04.2012 and issued appointment order dated 21.05.2012. The petitioner’s engagement was extended every year till 2019 though kept in abeyance by order dated 22.06.2019. It is submitted that the petitioner is entitled to benefits under the Odisha Group-C and Group-D posts (contractual appointment) Rules, 2013 for regularization of his services. 4. The learned Additional Government Advocate referring to the counter affidavits filed on behalf of opposite party no.1-State of Odisha represented through Secretary to the Government, Law Department, opposite party no.2-District & Sessions Judge, Khurda and opposite party no.3-Judge, Family Court, Bhubaneswar submits that the purported ‘advertisement’ dated 27.04.2012 was issued by the Judge, Family Court, Bbubaneswar who is not competent to do so. As per the Odisha District and Subordinate Courts’ Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 to issue and such advertisement and undertake selection process. He relies on the provisions which are reproduced herein: “3. Cadre- (1) The ministerial service of each of the District Courts and all Civil Courts there under shall constitute one separate cadre consisting of one post of District Court 1[Chief Administrative Officer] and such number of Posts of Senior Clerks (Head Clerk Grade), Senior Clerks, Junior Clerks, Typists, Copyists and other special Posts, as the Government may determine, from time to time, after consultation with the Court. (2) The posts of Stenographers in each District shall constitute an independent cadre consisting of Stenographer Grade-I, Stenographer Grade-II and Stenographer Grade-III; Provided that, in addition to Stenographer Grade-I, there shall be a Personal Assistant to the District and Sessions Judge. The post shall carry the pay scale of Stenographer Grade-I. The District and Sessions Judge may select his Personal Assistant from the cadre of Grade-I Stenographer. (3) The group ’C’ employees in each District, other than those covered in sub-rules (1) and (2), who are in the next higher scale of pay of the Group ’D’ employees shall constitute an independent cadre. (4) in each District shall constitute an independent cadre consisting of Orderly Peon, Office Peon, Sweeper, Process Service, Night Watchman-cum- Sweeper, Malkhana Guard, Malkhana Peon, Treasury Peon, Daftri, Gardener, Jamadar, Record Attendant and Library Attendant. (5) The posts in the cadres shall be grouped as ’A’,’B’, ’C’ and ’D’ the General in accordance with Resolution No.17655/Gen., Administration Department dt.7.6.1999 as modified from time to time. 6. Competitive Examination-(1) Recruitment to the post of Junior Clerks, Typists and Copyists in the District Courts and the Civil Courts of each district shall be made by a competitive The Group ‘D’ employees the provisions of Page 3 of 10 examination to be held once in a year. Recruitment to the Posts of Stenographers Grade-III (Junior Stenographers) shall be made by a competitive examination, whenever necessary. (2) There shall be a District Recruitment Committee for each District consisting of the following:- 1. Principal District and Sessions Judge ... Chairman 2. Senior most Additional District and Sessions Judge ... Member 3. Civil Judge (Sr. Division)/C.J.M. ... Member (3) 1[The competitive examination shall be conducted by the District Recruitment Committee. The date on which the examination is to be held shall be fixed by the District Recruitment Committee in consultation with the High Court and such recruitment committee shall fix the places at which the examination is to be held.] xxx xxx The learned Additional Government Advocate also relies on the xxx” xxx 5. rule providing manner of selection of Candidates. 7. Manner of Selection of Candidates – (1) After receipt of applications for recruitment examination career merit lists for general and reserved categories according to the descending order of total of percentage of marks in2 [H.S.C., +2 and +3 examination] or their equivalent examinations shall be prepared. (2) From each category of career merit list, candidates up to 20 times of actual vacancy in each category shall be called to appear at the written test. (3) Considering the marks secured in the written test one merit list for general candidates and separate merit list for each of the reserved categories shall be prepared and candidates up to ten times of vacancy in each category shall be called for Computer Science test (practical), short-hand and typewriting test, as the case may be, and the candidates selected in such practical test shall be called for viva voce test.] [(4) On the basis of marks secured in the written test, practical test as provided in sub-rule-(3) and the viva voce test, a merit list of all candidates (both general and reserved categories) shall be prepared and thereafter separate merit lists for general and reserved categories shall be prepared according to the descending order of total marks,] (5) Candidates according to the descending order of total marks of each category mentioned in sub-rule (4) shall be selected for filling of the vacancy. [(6) The select list in respect of posts advertised shall remain valid for a period of one year from the date of first appointment from such list or till the date notified for next recruitment, whichever is earlier.] (7) There shall be a Recruitment Cell for each district to be constituted by the respective District and Sessions Judges for the purpose of collecting information continuously as to the vacancies arising upon retirement, promotion or resignation. Page 4 of 10 The Cell shall assist the District Recruitment Committee and Process applications received for the posts and short list them as per the provisions of these rules. (8) The recruitment shall take place every year well in advance before the vacancies arise.” The thrust of submission of the learned Additional Government 6. Advocate is that the relevant rule of recruitment was given complete go by, making the selection of the petitioner illegal, violative of the rights of other candidates to get equal opportunity of employment under State guaranteed under Articles 14 and 16(1) of the Constitution of India. 7. The learned Senior Counsel for the petitioner as an alternative argument submitted that Recruitment Rules, 2008 and Rules, 2010 are not applicable to the petitioner as he was selected by the Judge, Family Court, Bhubaneswar and working under him and not under the District & Sessions Judge, Khurda. Reliance is placed by the learned Senior Counsel to the provisions of Rule, 2 of the Odisha General Financial Rules, Volume-I, according to which the Judge, Family Court has been declared as head of the office as per the provisions of Rule, 2 of the Odisha General Financial Rules, Volume-I. The learned Additional Government Advocate referring to the counter affidavit filed on behalf of opposite party no.1-State of Odisha through the Secretary to Government, Department of Law, submits that declaration of Judge, Family Court as head of an office is for the limited purpose of financial management, sanction of budgetary support and similar other purposes. 8. We accept the submissions of learned AGA. Further it has to be noticed that the Rules, 2008 does not make any such exception regarding its applicability. Further, the contention of the learned Senior Counsel appearing for the petitioner cannot be countenanced in view of the Rules, 2008 and Rules, 2010 which was preceded by the Orissa District and Sub- ordinate Courts’ Ministerial Service (Method of Recruitments & Conditions of Services) Rules, 1969. As indicated above the Rules, 2008 and Rules, 2010 clearly provide and define-2(a) “Court”, 2(c) “District”, 2(d) “District Court”, 2(e) “District Judge”, 3. “Cadre”, 4. “Method of Recruitment”, 6. “Competitive Examination.” The Rules more particularly provide 6-(2): “District Recruitment Committee” consisting of the Principal District and Sessions Judge, Senior most Additional District and Sessions Judge, Civil Judge (Sr. Division)/Chief Judicial Magistrate as members of the committee who will conduct the competitive examinations for recruitment (Rules, 6 (3)) and the manner of selection is provided in Rule, 7. We rely on the principle laid down by the Apex Court in Renu v. 9. District and Sessions Judge: (2014) 14 SCC 50 while dealing with illegal/irregular appointments made in some District Courts and we quote: “4… … …, we do not think it necessary to peruse the record in order to gauge the amount of irregularities or illegalities. Our basic concern is that the appointments in judicial institutions must be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of India and under no circumstance any appointment which is Page 5 of 10 illegal should be saved for the reason that the grievance of the people at large is that complete darkness in the lighthouse has to be removed. The judiciary which raises a finger towards actions of every other wing of the society cannot afford to have this kind of accusations against itself. 5. The rule of law is the basic feature of the Constitution. There was a time when Rex was Lex. We now seek to say Lex is Rex. It is axiomatic that no authority is above law and no man is above law. Article 13(2) of the Constitution provides that no law can be enacted which runs contrary to the fundamental rights guaranteed under Part III of the Constitution. The object of such a provision is to ensure that instruments emanating from any source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights. Thus, the main objective of Article 13 (2) is to secure the paramountcy of the Constitution, especially with regard to the fundamental rights. The aforesaid provision is in consonance with the legal principle of “rule of law” and they remind us of the famous words of the English jurist, Henry de Bracton — “The King is under no man but under God and the Law”. No one is above law. The dictum — “Be you ever so high, the law is above you” is applicable to all, irrespective of his status, religion, caste, creed, sex or culture. The Constitution is the supreme law. All the institutions, be it legislature, executive or judiciary, being created under the Constitution, cannot ignore it. The exercise of powers by an authority cannot be unguided or unbridled as the Constitution prescribes the limitations for each and every authority and therefore, no one, howsoever high he may be, has a right to exercise the power beyond the purpose for which the same has been conferred on him. Thus, the powers have to be exercised within the framework of the Constitution and legislative provisions, otherwise it would be an exercise of power in violation of the basic features of the Constitution i.e. Part III dealing with the fundamental rights which also prescribes the limitations. 6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution. 7. In I.R. Coelho v. State of T.N. [(2007) 2 SCC 1 : AIR 2007 SC 861] , the doctrine of basic features has been explained by this Court as under : (SCC p. 108, para 141) “141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.” xxx the nature of xxx xxx xxx Page 6 of 10 xxx 13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] , observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. “Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.” The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete. 14. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83] this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates, thereby the right of equal opportunity is effectuated. The Court held as under : (SCC p. 452, para 36) xxx xxx xxx 23. Article 235 of the Constitution provides for power of the High Court to exercise complete administrative control over the subordinate courts. This control, undoubtedly, extends to all functionaries attached to the subordinate courts including the ministerial staff and servants in the establishment of the subordinate courts. If the administrative control cannot be exercised over the administrative and ministerial staff i.e. if the High Court would be denuded of its powers of control over the other administrative functionaries and ministerial staff of the District Court and subordinate courts other than judicial officers, then the purpose of superintendence provided therein would stand frustrated and such an interpretation would be wholly destructive to the harmonious, efficient and effective working of the subordinate courts. xxx xxx xxx 29. Thus, in view of the above, the law can be summarised to the effect that the powers under Article 229(2) of the Constitution cannot be exercised by the Chief Justice in an unfettered and arbitrary manner. Appointments should be made giving adherence to the provisions of Articles 14 and 16 of the Constitution and/or such rules as made by the legislature. 30. In today’s system, daily labourers and casual labourers have been conveniently introduced which are followed by attempts to regularise them at a subsequent stage. Therefore, most of the times the issue raised is about the procedure adopted for making appointments indicating an improper exercise of discretion even when the rules specify a particular mode to be adopted. There can be no doubt that the employment whether of Class IV, Class III, Class II or any other class in the High Court or courts xxx Page 7 of 10 it to falls within subordinate the definition of “public employment”. Such an employment, therefore, has to be made under rules and under orders of the competent authority. 31. In a democratic set-up like ours, which is governed by rule of law, the supremacy of law is to be acknowledged and absence of arbitrariness has been consistently described as essence of rule of law. Thus, the powers have to be canalised and not unbridled so as to breach the basic structure of the Constitution. Equality of opportunity in matters of employment being the constitutional mandate has always been observed. The unquestionable authority is always subject to the authority of the Constitution. … … 32. It has been rightly said: “Perfection consists not in doing extraordinary things, but in doing ordinary things extraordinarily well.” 33. We had the advantage of the response given by the High Courts and the State. Some of the States like Jharkhand, Kerala, Madhya Pradesh, Orissa, Sikkim and Uttarakhand have pointed out in their respective affidavits that the recruitment for most of the posts are made by centralised selection and some of those posts are transferable. Some States like Jharkhand have pointed out that there is a centralised recruitment for all the posts but divisionwise and are transferable within the division. Some of the States like Punjab and Haryana and Uttar Pradesh have pointed out that they have already drafted the rules providing for centralised recruitment. The State of Himachal Pradesh and the High Court thereof have shown inclination towards the centralised recruitment. In the State of Madhya Pradesh, though rules do not provide for centralised recruitment but it is so done under the administrative order of the Chief Justice of the High Court. Other States and the High Courts have also made suggestions that it is the need of the hour to provide for centralised recruitment. xxx 10. The principles of recruitment in respect of employment in the High Courts or in the Courts subordinate to them laid down in Renu (SCC P.67 para 35, supra) were again reiterated and summarized in the later decision of State of Jammu & Kashmir v. District Bar Association, Bandipora: (2017) 3 SCC 410. The paragraphs 17, 18 & 19 are reproduced below: xxx” xxx xxx “17. The following directions have been issued in Renu for observance by all the High Courts : (SCC p. 67, para 35) “35.1. (i) All the High Courts are requested to re-examine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified. 35.2. (ii) To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance with the statutory rules so made. In case any Page 8 of 10 appointment is made in contravention of the statutory rules, the appointment would be void ab initio irrespective of any class of the post or the person occupying it. 35.3. (iii) The post shall be filled up by issuing the advertisement in at least two newspapers and one of which must be in vernacular language having wide circulation in the respective State. In addition thereto, the names may be requisitioned from the local employment exchange and the vacancies may be advertised by other modes also e.g. Employment News, etc. Any vacancy filled up without advertising as prescribed hereinabove, shall be void ab initio and would remain unenforceable and unexecutable except such appointments which are permissible to be filled up without advertisement e.g. appointment on compassionate grounds as per the rules applicable. Before any appointment is made, the eligibility as well as suitability of all the candidates should be screened/tested while adhering to the reservation policy adopted by the State, etc. if any. 35.4. (iv) Each High Court may examine and decide within six months from today as to whether it is desirable to have centralised selection of candidates for the courts subordinate to the respective High Court and if it finds it desirable, may formulate the rules to carry out that purpose either for the State or on zonal or divisional basis. 35.5. (v) The High Court concerned or the subordinate court as the case may be, shall undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies that are likely to occur within the said period, so that the vacancies are filled up timely, and thereby avoiding any inconvenience or shortage of staff as it will also control the menace of ad hocism.” 18. The judgment in Renu [Renu v. District and Sessions Judge, (2014) 14 SCC 50 : (2015) 3 SCC (L&S) 406] underlines the importance of the High Court complying with statutory rules in matters of recruitment. The judgment also emphasises the need to abide by the principles of equality and equal opportunity in Articles 14 and 16. xxx xxx 10. In view of the clear provisions of law and the pronouncements of law in Renu (supra) and State of Jammu & Kashmir (supra) it has to be held that the selection and appointment of the petitioner was in complete violation of the norms and guidelines as directed by the Apex Court, the 2008/2010 recruitment rules rather at complete variance of those guidelines. The appointment was illegal, contrary to law, violative of rights of other candidates guaranteed by the Constitution of India under Articles 14 and 16(1) of Constitution of India that is rights of equal opportunity of engagement under State. Also, equity does not come to the aid of the petitioner to grant him any relief by this Court in view of the law declared by the Apex Court that is binding as per Article 141 of the Constitution of India. 11. devoid of merit is dismissed. Costs made easy.” In view of the discussions made above, the writ petition being xxx” xxx Page 9 of 10 3. We have very carefully perused the structure of the said judgment. The very same grounds that were urged earlier are rhetorically re-canvassed before this Bench too. Of course, that cannot be faltered, inasmuch as learned companion Judge (Mr. Behera, J.) was not a part of previous Bench. We are fully in agreement with the jurisprudential reasoning of learned brother Judge Mr. Sahoo, J., in the recalled judgment, no new point having been pressed into service. In the above circumstances, the writ petition, being devoid of merits, is liable to be dismissed and accordingly it is. (Dixit Krishna Shripad) Judge (Ananda Chandra Behera) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 10-Nov-2025 18:47:50 Page 10 of 10