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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.38665 of 2021 In the matter of an application under Articles 226 & 227 of the Constitution of India, 1950 ……………… Prasant Kumar Nayak …. Petitioner -versus- Union of India & Others …. Opposite Parties For Petitioner : Mr. K.C. Rajguru Mohapatra, Advocate For Opp. Parties: Mr. P.K. Parhi, DSGI Mr. G. Mishra, Sr. Adv. for Paradeep Port Trust, Adv. for O.P.2 & 3 Mr.S.S. Purohit, Adv. for O.P.4 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------- Date of Hearing: 30.07.2025 and Date of Judgment:30.07.2025 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. // 2 // 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia challenging the order dtd.05.04.2021 so passed by Opposite Party No.2 under Annexure-10. Vide the said order, Opposite Party No.2 in terms of the order passed by this Court at the instance of the present Petitioner in W.P.(C) No.5389 of 2021 held the selection and appointment of present Opposite Party No.4 to have been made in accordance with law and there is no illegality or irregularity with his selection. 4. Learned counsel appearing for the Petitioner contended that basing on the advertisement issued by the authorities of Paradeep Port Trust on 19.01.2011 under Annexure-1, inviting applications to fill up four posts of Pilot, the present Petitioner as well as Opposite Party No.4 made their applications along with others. The Selection Committee in its proceeding dtd.28.02.2011 under Annexure-6, when recommended the present Petitioner along with Opposite Party No.4 and one Captain Debakanta Kar for their appointment to the post of Pilot, Page 2 of 18 // 3 // Petitioner made a complaint on 27.11.2018 contending inter alia that Opposite Party No.4 since does not have the required experience and qualification, he could not have been recommended for his appointment as a Pilot in Paradeep Port Trust pursuant to Annexure-1. 4.1. It is contended that on receipt of such complaint and vide Annexure-7, it was intimated by the Ministry of Shiping, Govt. of India that Chairman, Paradeep Port Trust-Opposite Party No.2 has been forwarded with the investigation report of the Chief Vigilance Officer, Paradeep Port Trust, to take appropriate administrative action in the matter.
Legal Reasoning
4.2. It is contended that on the face of such letter issued under Annexure-7, when no action was taken by the Chairman, Paradeep Port Trust-Opposite Party No.2, Petitioner challenging such inaction of Opposite Party No.2, approached this Court by filing W.P.(C) No.5389 of
Decision
2021. This Court vide order dtd.15.02.2021, disposed of the said Writ Petition by directing Opposite Party No.2 to Page 3 of 18 // 4 // take a final decision on the Petitioner’s grievance with regard to the selection and engagement of Opposite Party No.4. 4.3. Learned counsel appearing for the Petitioner contended that without proper appreciation of the complaint made by the Petitioner and the report submitted by the Chief Vigilance Officer as reflected in Annexure-7, Opposite Party No.1 vide the impugned order dtd.05.04.2021 under Annexure-10, held the selection and appointment of Opposite Party No.4 as against the post of Pilot pursuant to the advertisement issued under Annexure-1 as legal and justified. 4.4. Learned counsel appearing for the Petitioner contended that challenging such order dtd.05.04.2021 so passed under Annexure-10, Petitioner when approached this Court by filing W.P.(C) No.21112 of 2021, the said Writ Petition was disposed of as withdrawn with liberty to approach the appropriate forum. Accordingly, Petitioner challenging the order dtd.05.04.2021 preferred an appeal Page 4 of 18 // 5 // before Opposite Party No.1 under Annexure-12. However, Opposite Party No.1 vide letter dtd.23.06.2021 under Annexure-14-Series, when held that against order dtd.05.04.2021, no appeal lies and the same is not covered under CCA Rules of Paradeep Port Trust, the present Writ Petition has been filed once again challenging the order dtd.05.04.2021 so passed under Annexure-10. 4.5. Learned counsel appearing for the Petitioner contended that in view of the report submitted by the Deputy Chief Vigilance Officer on 28.09.2019, copy of which was provided to him under RTI vide Annexure- 13, the finding of Opposite Party No.2 that no illegality or irregularity has been committed with regard to selection of Opposite Party No.4 pursuant to Annexure-1 vide the impugned award dtd.05.04.2021 is not at all justified and the same requires interference of this Court. 4.6. It is also contended that since Opposite Party No.4 was not having the required qualification and the Page 5 of 18 // 6 // eligibility as well as experience, he could not have been selected with his placement at Sl. No.2 vis-(cid:224)-vis the Petitioner at Sl. No.3 under Annexure-6 and Petitioner be held as senior to the said Opposite Party No.4. It is accordingly ocntended that the impugned order needs interference of this Court as being not sustainable in the eye of law. 5. Mr. G. Mishra, learned Senior Counsel appearing for Paradeep Port Trust-Opposite Party Nos.2 & 3 on the other hand made his submission basing on the stand taken in the counter affidavit. 5.1. Learned Senior Counsel appearing for Opposite Party Nos.2 & 3 contended that pursuant to Annexure-1 advertisement though the selection was finalized by the Selection Committee in its proceeding dtd.28.02.2011 under Annexure-6, but Petitioner raised the claim with regard to selection and appointment of Opposite Party No.4 by making a complaint only on 27.11.2018 i.e. Page 6 of 18 // 7 // around seven years of the completion of the selection process. 5.2. It is accordingly contended that since selection and appointment of Opposite Party No.4 was only challenged with making of an application in the year 2018, in view of the decision of the Hon’ble Apex Court in the case of State of T.N. vs. Seshachalam, reported in (2007) 10 SCC-137, the same is not entertainable. Hon’ble Apex Court in Para-16 of the said decision has held as follows:- “16. .................filing of representations alone would not save the period of limitation. Delay or latches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or latches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.” 5.3. It is also contended that basing on the complaint made by the Petitioner, though enquiry was conducted by the Deputy Chief Vigilance Officer, Paradeep Port Trust, but nothing serious was found with regard to the selection and appointment of Opposite Party No.4. Page 7 of 18 // 8 // 5.4. It is also contended that on the face of such report submitted by the Chief Vigilance Officer, which was forwarded to Opposite Party No.2 under Annexure-13 when no further action was taken, Petitioner alleging inaction on the part of Opposite Party No.2 approached this Court by filing W.P.(C) No.5389 of 2021. Pursuant to order dtd.15.02.2021 of this Court under Annexure-9, Opposite Party No.2 considering the report submitted by the Chief Vigilance Officer so available under Annexure- 13 and the relevant file considering the recruitment, came to a right conclusion that no illegality or irregularity has been committed with regard to the selection and appointment of Opposite Party No.4. 5.5. It is further contented that challenging such order passed by Opposite Party No.2 on 05.04.2021, though the Petitioner approached this Court in W.P.(C) No.21112 of 2021, but the said Writ Petition was disposed of as withdrawn with liberty to the Petitioner to move the appropriate forum vide order dtd.30.07.2021 under Annexure-11. Pursuant to the said liberty, Petitioner Page 8 of 18 // 9 // though preferred an appeal against order dtd.05.04.2021 before Opposite Party No.1 under Annexure-12, but the appellate authority vide his communication dtd.23.06.2021 under Annexure-14-Series, held that the appeal is not maintainable. But while filing the present Writ Petition, the communication issued by Opposite Party No.1 on 23.06.2021 has not been challenged by the Petitioner. 5.6. It is also contended that since challenge made to order dtd.05.04.2021 in W.P.(C) No.21112 of 2021 was disposed of as withdrawn vide order dtd.30.07.2021, on the face of such order, the present Writ Petition challenging the self-same order dtd.05.04.2021 is not entertainable. 5.7. It is also contended that since disputed question of facts are involved, taking into account the nature of allegation made by the Petitioner, in view of the decision of the Hon’ble Apex Court in the case of New Okhla Industrial Development Authority vs. Kendriya Page 9 of 18 // 10 // Karamchari Sahkari Grih Nirman Samiti, reported in (2006) 9 SCC-524, the Writ Petition under Articles-226 and 227 of the Constitution of India is not maintainable. Hon’ble Apex Court in Para-13 of the said judgment has held as follows:- “13. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition.” 5.8. Bereft of the aforesaid legal proposition, learned Senior Counsel appearing for Opposite Party Nos.2 & 3 contended that in terms of the advertisement issued under Annexure-1, not only the Petitioner, but also Opposite Party No.4 participated as against the post of Pilot and the Selection Committee in its proceeding dtd.28.02.2011 under Annexure-6, held the present Petitioner as well as Opposite Party No.4 eligible along with one Captain Debakanta Kar for the post of Pilot. On the face of such selection and appointment, with Page 10 of 18 // 11 // vindictive attitude, Petitioner made the complaint against the selection and appointment of Opposite Party No.4 after about seven year of the completion of the selection process. 5.9. It is accordingly contended that in view of such delayed approach made by the Petitioner with regard to the selection and appointment of Opposite Party No.4, the Writ Petition is not at all entertainable on the ground of delay. 5.10. It is also contended that since on enquiry, no serious irregularities were found to have been committed with regard to selection and appointment of Opposite Party No.4 by the vigilance, on the face of such report submitted under Annexure-13, no illegality or irregularity can be found with the order passed by Opposite Party No.2 on 05.04.2021 under Annexure-10. 5.11. A further submission was also made that since challenge made to the impugned order, in W.P.(C) No.21112 of 2021, was disposed of as withdrawn, the Page 11 of 18 // 12 // present Writ Petition challenging the self-same order is not maintainable. 5.12. Making all the submissions, learned Senior Counsel appearing for the Paradeep Port Trust –Opposite Party Nos.2 and 3 contended that no illegality or irregularity can be found with the impugned order dtd.05.04.2021 so passed by Opposite Party No.2 under Annexure-10, 6. Similar submission was also made by the learned Counsel appearing for Opposite Party No.4, as made by the learned Senior Counsel appearing for Opposite Party Nos.2 and 3. 6.1. Mr. S.K. Purohit, learned counsel appearing for Opposite Party No.4 further contended that pursuant to Annexure-1, both Petitioner and Opposite Party No.4 got the benefit of selection and appointment. Accordingly there was no occasion on the part of the Petitioner to challenge the selection and appointment of Opposite Party No.4 and that too in making the allegation against Page 12 of 18 // 13 // him before the Chief Vigilance Officer of the Port Trust after about seven years of such selection and appointment. 6.2. It is also contended that on the face of the report submitted by the Chief Vigilance Officer of Paradeep Port Trust available under Annexure-13, no illegality or irregularity can be found with the selection and appointment of Opposite Party No.4 as a Pilot pursuant to Annexure-1. 6.3. It is also contended that since in the meantime Opposite Party No.4 has already rendered more than 14 years of service, Opposite Party No.4 will be seriously prejudiced, if at this stage any interference is made with regard to his selection and appointment. It is also contended that Opposite Party No.4 has no fault of his own with regard such selection and appointment pursuant to Annexure-1. It is accordingly contended that the impugned order needs no interference. Page 13 of 18 // 14 // 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that pursuant to the advertisement issued by the Paradeep Port Trust under Annexure-1, Petitioner and Opposite Party No.4 participated in the selection process as against the post of Pilot. As found, the Selection Committee in its proceeding dtd.28.02.2011 under Annexure-6, recommended for appointment of the present Petitioner along with Opposite Party No.4 and one Captain Debakanta Kar. Pursuant to the said order Petitioner and Opposite Party No.4 were appointed as against the post of Pilot in the yeare 2011, which is not disputed. 7.1. It is found that after such selection and appointment made in the year 2011, Petitioner raised a complaint for th 1st time on 27.11.2018 before the Chief Vigilance Officer of Paradeep Port Trust on 27.11.2018. As found Chief Vigilance Officer while submitting the report under Annexure-13, clearly observed that no serious irregularities have been committed with regard to Page 14 of 18 // 15 // selection and appointment of Opposite Party No.4 and any such irregularities are within the administrative domain of the authoriity. 7.2. On the face of such report, when no further action was taken, Petitioner moved Government-Opposite Party No.1, challenging the inaction of Opposite Party No.2 in not taking action basing on the report available under Annexure-13. Government-Opposite Party No.1 vide letter dtd.26.11.2019 under Annexure-7, intimated the Petitioner that report of the Chief Vigilance Officer has been forwarded to Opposite Party No.2 for taking appropriate administrative action. Alleging in-action on the part of Opposite Party No.2 in not taking action in the issue on the face of Annexure-7, Petitioner approached this Court by filing W.P.(C) No.5389 of 2021. 7.3. This Court vide order dtd.15.02.2021 under Annexure-9, when directed Opposite Party No.2 to take a decision taking into account the report submitted by the Chief Vigilance Officer, Opposite Party No.2 after going Page 15 of 18 // 16 // through the relevant documents and the selection file, held that no illegality or irregularity has been committed with regard to selection and appointment of Opposite Party No.4 vide his order dtd.05.04.2021. 7.4. It is found that challenging such order, Petitioner approached this Court by filing W.P.(C) No.21112 of 2021. The said Writ Petition was disposed of as withdrawn with liberty to approach appropriate forum vide order dtd.30.07.2021 under Annexure-11. As found in terms of the said order, Petitioner preferred an appeal before Opposite Party No.1 vide Annexure-12. But the appellate authority vide letter dtd.23.06.2021 under Annexure-14- Series, when held that no appeal lies against order dtd.05.04.2021, the present Writ Petition was filed once again, challenging order dtd.05.04.2021. As found while filing the present Writ Petition, communication dtd.23.06.2021 so issued by Government-Opposite Party No.1 under Annexure-14 has not been challenged. Page 16 of 18 // 17 // 7.5. Since the impugned order so challenged in W.P.(C) No.21112 of 2021, was not entertained and the Writ Petition was disposed of as withdrawn by granting liberty to the Petitioner to move the appropriate forum, as per the considered view of this Court, the present Writ Petition filed challenging the self-same order is not entertainable. Not only that challenge made to the selection and appointment of Opposite Party No.4, after about seven years of the selection and appointment, as per the considered view of this Court is also not maintainable and it is barred by time, in view of the decision of the Hon’ble Apex Court in the case of Seshachalam as cited (supra). 7.6. It is also the view of this Court that since Petitioner and Opposite Party No.4 have got the benefit of selection and appointment and it is not the case of the Petitioner that he was deprived from such selection on the face of selection of Opposite Party No.4, challenge made to the selection and appointment of Opposite Party No.4 is an afterthought on the part of the Petitioner. Page 17 of 18 // 18 // 7.7. In view of the aforesaid analysis, this Court finds no illegality or irregularity with the impugned order dtd.05.04.2021 so passed by Opposite Party No.2 under Annexure-10. Accordingly, this Court is not inclined to interfere with the said order. 8. The Writ Petition stands dismissed accordingly. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 30th July, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Sep-2025 17:03:46 Page 18 of 18