Prakash Chandra Mishra vs State Of Odisha & Ors
2023 Latest Caselaw 1210 Ori

                                       1


            IN THE HIGH COURT OF ORISSA AT CUTTACK


                         W.P (C) No.34166 of 2022

Prakash Chandra Mishra               .....                               Petitioner
                                                      Mr. S.S. Das, Sr. Advocate
                                                 along with Mr.S. Das, Advocate
                                     Vs.
State of Odisha & Ors.               .....                       Opposite Parties
                                                         Mr. A.K. Mishra , AGA

            CORAM:
               DR. JUSTICE B.R. SARANGI
               MR. JUSTICE B.P. SATAPATHY

                                            ORDER

06.02.2023

Order No. This matter is taken up through hybrid mode.

2. Heard Mr. S.S. Das, learned Senior Advocate appearing along with Mr. S. Das, learned counsel for the petitioner and Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties.

3. The petitioner has filed this writ petition seeking direction to the opposite parties to extend the benefit of promotion to the cadre of District Judge, i.e. Odisha Superior Judicial Service (Senior Branch) from 04.10.2005, grant of selection grade from 03.10.2010 and sanction of super-time scale from 01.05.2013 with retrospective effect from the date his juniors have got such benefit on notional re-fixation of his seniority in the Civil List/Gradation List as per the seniority prevailing in the erstwhile cadre of Orissa Superior Judicial Service (Junior Branch) w.e.f. 04.10.2005 and grant all other consequential service benefits including the post- retirement pensionary benefits by revision of pension and release all arrear financial dues pursuant to judgment dated 17.02.2012

passed by this Court in W.P.(C) No.24906 of 2011 (Dr. Durga Prasanna Choudhury v. State of Orissa).

4. Mr. S.S. Das, learned Senior Advocate appearing for the petitioner contended that pursuant to the notification dated 10.09.1982 where the petitioner was placed at Sl. No.3, he joined as Munsifs in O.J.S., Class-II service on 11.10.1982 in the judgeship of Puri. Thereafter, he was posted as Addl. Munsif- JMFC, Bhadrak in 1983. On 30.01.1989, he was promoted to the cadre of O.J.S. Class-1(Junior) and was posted as SDJM, being placed above opposite parties no.4 to 6, pursuant to which a notification was issued on 09.02.1989 refixing the inter-se- seniority in compliance of the order passed in OJC No.2254 of 1985, wherein the petitioner's rank was at Sl. No.31, whereas opposite parties no.4 to 6 were placed below him at Sl. Nos.32, 35 & 45 respectively. Again, the petitioner was promoted to the cadre of OJS Class-1 on 14.11.1994, in which notification opposite parties no.4 to 6 were also placed as juniors to him. Thereafter, on 07.09.2001, the petitioner was promoted to the cadre of Orissa Superior Judicial Services (Jr. Branch) and was posted as Presiding Officer, Labour Court, Sambalpur on 06.11.2001. Accordingly, in 2002 a gradation list was published showing the petitioner being placed at Sl. No.27 and opposite parties no.4 to 6 below the petitioner. After that a notification was issued 19.07.2004 transferring and posting him as Chief Judicial Magistrate, Keonjhar. It is contended that the dispute arose in 2005 when the Promotion Committee recommended the promotion of opposite parties no.4 to 6, who were juniors to the petitioner, to the cadre of District Judge, Senior Branch of Orissa Superior Judicial Service in discrimination of the case of the petitioner. Then the petitioner made a representation on 05.09.2005, but the same was not

considered. Thereafter, vide notification dated 27.09.2007, he was promoted to the cadre of District Judge on ad-hoc and temporary basis and subsequently he was transferred and posted as 2nd Addl. District and Sessions Judge, Berhampur and thereafter was posted at Phulbani. It is further contended that he successfully completed his probation as the District Judge, vide notification dated 26.03.2011. Challenging the selection list, one Dr. Durga Prasanna Choudhury approached this Court by filing W.P.(C) No.24906 of 2011 and this Court, vide judgment dated 17.02.2012, directed the authority to extend the benefits of promotion at par with his juniors w.e.f. the date, his juniors got such benefits with other consequential service benefits. Thereafter, the petitioner filed a representation again on 02.03.2012 to consider his case in the light of judgment in Dr. Durga Prasanna Choudhury (supra). On 03.08.2012, he joined as Special Judge, Special Court, Cuttack and thereafter on 11.01.2013, he requested to the Registrar General, Orissa High Court to place his representations dated 05.09.2005 and 02.03.2012 before the Court for consideration in the light of judgment passed in Dr. Durga Prasanna Choudhury (supra). It is further contended that notification was issued on 07.05.2013 granting super-time scale to Dr. Durga Prasanna Choudhury and opposite parties no.4 to 6, but he was granted selection grade in the cadre of District Judges w.e.f. 01.05.2013. Aggrieved by such position, the petitioner approached this Court by filing W.P.(C) No.12705 of 2013, which was disposed of as withdrawn, vide order dated 29.09.2020, giving liberty to file a fresh writ petition. Though the petitioner filed W.P.(C) No.31946 of 2022, but the same was also disposed of as withdrawn because of non-impletion of proper parties. Therefore, when the present writ petition (W.P.(C) No.34166 of 2022) was listed on 23.12.2022, the same

was not entertained and was dismissed for delay and laches. As a consequence thereof, he filed I.A. No.281 of 2023 for recalling of the order dated 23.12.2022, but Mr. P.K. Ghose, learned counsel appearing for the petitioner prayed for withdrawal of the said I.A. with liberty to file a better application. Thereby, he filed I.A. No.958 of 2023 for recalling of the order dated 23.12.2022 and this Court, vide order dated 31.01.2023, recalled the said order and restored W.P.(C) No.34166 of 2022 to file. It is further contended that the petitioner is entitled to get the relief sought in the writ petition, i.e., to grant benefit as due and admissible to him from the date his juniors, i.e., opposite parties no.4 to 6 have got such benefit.

5. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties contended that the petitioner is now making out a stale claim before this Court, when the cause of action arose in the year 2005 and he approached this Court by filing W.P.(C) No.12705 of 2013 after disposal of W.P.(C) No.24906 of 2011 filed by one Dr. Durga Prasanna Choudhury, vide judgment dated 17.02.2012. Thereby, W.P.(C) No.12705 of 2013 was disposed of as withdrawn, vide order dated 29.01.2020, giving liberty to the petitioner to file a fresh writ petition. As a consequence thereof, he filed W.P.(C) No.31946 of 2022 after lapse of near about two years and, thereafter, the same was also withdrawn because he had not impleaded proper parties to the writ petition. Again by way of present writ petition, he pursues his remedy, which cannot be sustained in the eye of law. It is contended that the writ petition suffers from delay and laches, and thereby, the relief sought cannot be granted to the petitioner.

6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that

the claim of the petitioner relates to the year 2005 and, as such, he retired from service in the year 2015. One Dr. Durga Prasanna Choudhury approached this Court by filing W.P.(C) No.24906 of 2011, which was disposed of vide judgment dated 17.02.2012, pursuant to which he got the benefit. The petitioner approached this Court by filing W.P.(C) No.12705 of 2013, but the same was dismissed for default and thereafter, the same was restored, vide order dated 29.01.2020 passed in CMAPL No.790 of 2015 and ultimately the said writ petition was disposed of as withdrawn, vide order dated 29.01.2020. Thereafter, the petitioner did not pursue his remedy for a period of two years and approached this Court by filing W.P.(C) No.31946 of 2022, which was also disposed of as withdrawn due to non-impletion of proper parties. As the petitioner has already retired from service in 2015 and for the self-same cause of action, he approached this Court by filing W.P.(C) No.12705 of 2013 and W.P.(C) No.31946 of 2022, which were not adjudicated and disposed of as withdrawn, that itself cannot be a ground to condone the delay. Since the petitioner wants to pursue his remedy after disposal of W.P.(C) No.24906 of 2011 filed by Dr. Durga Prasanna Choudhury, the petitioner can be said to be a fence sitter. As such, this writ petition is a defective one, as the petitioner has not impleaded his juniors as parties to the proceeding. Therefore, this Court is not inclined to entertain this writ petition and the same is dismissed.

                                        (DR. B.R. SARANGI)
                                             JUDGE



Alok                                   (B. P. SATAPATHY)
                                              JUDGE