Orissa High Court
Somanath Mishra vs Union Of India And Others on 16 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 24824 of 2011
Somanath Mishra ..... Petitioner
Mr. B. Routray, Sr. Advocate along
with Mr. S.K.Nayak, Advocate
Vs.
Union of India and others ..... Opposite parties
Mr. P.K. Parhi, ASGI (O.Ps. 1 to 4)
CORAM:
DR. JUSTICE B.R. SARANGI
MISS JUSTICE SAVITRI RATHO
ORDER
16.05.2022
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. Budhadev Routray, learned Senior Advocate
appearing along with Mr. S.K. Nayak, learned counsel for the petitioner
and Mr. P.K. Parhi, learned Assistant Solicitor General of India.
3. The petitioner has filed this writ petition challenging the order
dated 28.06.2021 passed by the Central Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No. 179 of 2009.
4. As it appears, the petitioner had earlier approached the Central
Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.
167 of 2006 questioning the legality of the action of the opposite parties
in depriving him from appearing the viva voice test on the ground of
physical disability (visually handicapped & medically unfit), for
placement in the Group-B/Engg. Panel for promotion to AEN against
70% quota of vacancies for the assessment period 2003-05. The said
O.A. was disposed of on 26.07.2007 in favour of the petitioner.
However, the same was challenged before this Court in W.P.(C) No.
15445 of 2007. The said writ petition was dismissed by upholding the
order of the tribunal. Accordingly the petitioner was allowed to appear
the viva-voce test on 12.01.2009. But the petitioner was not qualified
on the ground that he could not secure the required pass marks in the
viva voce and record of service taken together.
5. Being aggrieved by such order, the petitioner approached the
tribunal in O.A. No. 179 of 2009, with a prayer to quash the order
whereby the petitioner was declared as unsuccessful and for a direction
to promote the petitioner to the post of AEN, Gr. B. retrospectively, i.e.
from the assessment year 2004-05.
6. The opposite parties filed their counter affidavit before the
tribunal vehemently opposing the claim made by the petitioner.
According to them a similarly situated person, namely Puspak Ranjan
Nayak had filed an Original Application bearing O.A. No. 623 of 2006
challenging his non-selection on the ground of not securing the required
percentage of marks. However, the tribunal upheld the decision of the
Railway. Therefore, the tribunal relying on the order passed in the case
of Puspak Ranjan Nayak, observed that there was no additional
materials to differ from the view already taken by the Division Bench
of this Tribunal and accordingly dismissed the Original Application
filed by the present petitioner.
7. But, fact remains that the order of the tribunal passed in the case
of Puspak Ranjan Nayak was challenged before this Court in W.P.(C)
No. 5260 of 2009 by the petitioner-Puspak Ranjan Nayak. This Court
vide judgment dated 17.03.2020 set aside the order dated 16.03.2009
passed by tribunal in O.A. No. 623 of 2006 and directed the opposite
parties 2 and 3 to consider the promotion of the petitioner
retrospectively with all consequential benefits within two months from
the presentation of the order. Against such order the opposite parties
filed SLP before the apex Court bearing Special Leave to Appeal (C)
No (s) 14873 of 2020. The said appeal was dismissed vide order dated
09.02.2021. The order of this Court as well as apex Court are placed on
record vide Annexures-9 and 10 to the additional affidavit filed by the
petitioner. After the SLP was dismissed, the opposite parties
implemented the order of this Court by passing the order under
Annexure-11 series.
8. Since the present petitioner stands in the same footing as that of
Puspak Ranjan Nayak, his case is also covered by the judgment of this
court in the case of Puspak Ranjan Nayak (W.P.(C) No. 5260 of 2009
decided on 17.03.2020), which was affirmed by the apex Court in
Special Leave to Appeal (C) No (s) 14873 of 2020.
9. In view of the above, this Court is of the considered view that no
other view can be taken in the present case. Accordingly, the case of
the petitioner is to be considered in the light of the judgment dated
17.03.2020 passed in W.P.(C) No. 5260 of 2009, which was affirmed
by the apex Court in Special Leave to Appeal (C) No (s) 14873 of 2020
and implemented by the opposite parties under Annexure-11 series, in
letter and spirit. Needless to say that the above order be complied with
within a period of four months from the date of communication of the
order.
10. With above observation/direction the writ petition stands
allowed.
11. Issue urgent certified copy as per rules.
(DR. B.R. SARANGI)
JUDGE
Arun/Sukanta
(SAVITRI RATHO)
JUDGE
