Orissa High Court
Dibyarani Mohapatra vs District And Sessions Judge on 25 June, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.11284 OF 2025
An application under ArticleS 226 and 227 of the
Constitution of India
Dibyarani Mohapatra .... Petitioner
-Versus-
District and Sessions Judge, .... Opposite Parties
Nayagarh and another
Advocates appeared in this case:
For Petitioner : Mr. Sameer Kumar Das, Advocate
For Opp. Parties: Mr. Satyabrata Mohanty,
Additional Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
25.06.2025 PER DIXIT KRISHNA SHRIPAD, J.
Petitioner was appointed as Junior Typist vide order dated 19.05.2019 and she reported her duty on 01.06.2019. Page 1 of 8
She earned the promotion on 12.07.2022 as Senior Typist. However, vide order dated 27.04.2024 made by the learned District Judge she has been reverted to the original position of Junior Typist. She had made a representation against the same. Thereafter she had preferred a departmental appeal as provided under Rule 23 of the OCS (CC & A) Rules, 1962 to the Appeal Committee of this Court on the administrative side.
2. The above appeal was presented to the District Judge so that he would on a normative way forward the same to the Appeal Committee. To the dismay of petitioner, that forwarding did not take place allegedly on the ground that appeal was time-barred. We are told at the Bar that the District Judge ordinarily has power to withhold appeal of the kind in terms of Rule 27 of 1962 Rules,.
3. Learned counsel for the petitioner submits that withholding of appeal of the kind is a serious matter; strong W.P.(C) No.11284 of 2025 Page 2 of 8 reasons have to be assigned for the same; even if appeal is time barred, the appellate authority may entertain it after condoning delay; from any standards the action of District Judge is not fair & just. He also adds that after the reversion of petitioner two of her juniors have been promoted as Senior Typists disregarding the candidature of his client. According to him, this is nothing but adding insult to the injury. Lastly, he finds fault with the recovery of differential of the salary as a result of reversion contending that the same offends doctrine of begar.
4. Learned Additional Government Advocate on request taking notice for the opposite parties resists the petition making submission in justification of the reasons on which the impugned order is structured. He argues that though the right of appeal is a statutory & substantive right, if the same is not exercised within the period of limitation prescribed by law, it dies and therefore the impugned action of the District Judge in withholding the appeal cannot be W.P.(C) No.11284 of 2025 Page 3 of 8 much faltered. He also contends that to the petitioner was only on temporary basis and ordinarily it does not create any lien to the post, in the realm of service jurisprudence; therefore, if a temporary status is taken away and emoluments paid are withdrawn, much grievance cannot be made out. So contending he seeks dismissal of the petition.
5. Having heard the learned counsel for the parties and having perused the petition papers, we are broadly in agreement with the submission of learned counsel for the petitioner that withholding of a departmental appeal by a mediary like the District Judge herein, is not a happy thing to happen. There is power to withhold appeal in terms of Rule 27 of 1962 Rules cannot be much disputed is true. However, existence of power is one thing and its mindless exercise is another. A bare perusal of the impugned order does not reflect due application of mind for ascertaining jurisdictional facts on the basis of which appeal of the kind could have been withheld to the prejudice of the petitioner- W.P.(C) No.11284 of 2025 Page 4 of 8 employee. It also does not reflect due seriousness expected of a Judicial Officer in making such prejudicial orders. Withholding appeal permanently amounts to dismissing the appeal itself. Therefore, a very important right of an employee of judicial institution has been unjustifiably breached.
5.1. Learned counsel appearing for the petitioner is right in drawing our attention to the terminology of the subject Rule which imploys the word 'may' as distinguished from 'shall'. Ordinarily 'may' implies discretion, say the sages of law like Justice G.P. Singh in India, Maxwell in U.K. and Crawford in U.S.. This discretion is not a Mughal discretion. Lord Halsbury L.C. speaking for the House observed in Susannah Sharp v. Wakefield, [1891] A.C. 173 observed that discretion means according to the rules of reason & justice and not in a whimsical way nor according to the private opinion; it should be according to law, and not W.P.(C) No.11284 of 2025 Page 5 of 8 humour. That kind of reason & justice are lacking in the impugned order.
6. Learned counsel for the petitioner is also right in drawing our attention to Clause 3 of Rule 27 of 1962 Rules, which makes the power to withhold appeal dependent upon certain conditions: one of them is that the appeal is filed time-barred and no reasonable cause is shown for the delay brooked. If that be so, he could have asked the petitioner to file a better affidavit explaining the delay. After all, in a model employment, a worthy cause of an aggrieved employee cannot be laid to rest on a technical ground of the kind. In other words, the power availing under Rule 27 is not absolute and it is conditional. Unless these conditions are satisfied, the exercise of discretion to withhold the appeal cannot be sustained. In departmental appeal, we add, aspect of delay takes backseat.
W.P.(C) No.11284 of 2025 Page 6 of 8
7. A perusal of the records does not much disclose as to how the reversion of petitioner could have been directed, when two of her juniors have been promoted disregarding her candidature. Arguably, these are the cases of promotion on the basis of merit-cum-seniority as distinguished from seniority-cum-merit. Be that as it may, we do not undertake a deeper examination of this aspect of the matter, since it pertains to domain of appellate committee. That being said, it is difficult to justify recovery of remuneration paid to an employee for working in a post on fulltime basis only on the ground that he was not entitled to hold the post and therefore is reverted. It is not a case of fraud or duplicity attributed to the petitioner. In such a circumstance, recovering the differential of salary may fall foul of Constitutional prohibition of begar enacted in Article 23. Even this aspect is a matter for the consideration of appellate authority.
W.P.(C) No.11284 of 2025 Page 7 of 8
In the above circumstances, this petition is allowed in part. A writ of certiorari issues quashing the impugned order of the learned District Judge. Matter is remitted to the portals of District Judge, who shall refer the appeal in question to the jurisdictional committee at the earliest keeping open all contentions for consideration.
No costs.
Dixit Krishna Shripad Judge Mruganka Sekhar Sahoo Judge Orissa High Court, Cuttack The 25th June, 2025/Jyostna/Radha Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: ORISSA HIGH COURT Date: 26-Jun-2025 13:31:28 W.P.(C) No.11284 of 2025 Page 8 of 8