Prasanta Kumar Mishra vs 2. Heard Mr. S. Mishra
2023 Latest Caselaw 11669 Ori

                         IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No. 29495 of 2023

            Prasanta Kumar Mishra                     ....                      Petitioner
                                                                   Mr. S. Mishra, Adv.
                                            - Versus -

            State of Odisha & Another                    ....                 Opp.Parties
                                                                  Mr. I. Mohanty, ASC
                             CORAM:
                               JUSTICE SASHIKANTA MISHRA

                                            ORDER

26.09.2023

Order No. 1. This matter is taken up through hybrid mode.

1. 2. Heard Mr. S. Mishra, learned counsel for the petitioner and Mr. I. Mohanty, learned Addl. Standing Counsel for the State.

3. The petitioner has approached this Court with the following prayer:

"The petitioner, therefore, prays that the Hon'ble Court be pleased to admit this application and after hearing the petitioner's Advocate, issue a writ in the nature of mandamus or any other suitable writ directing the Opp. Parties to antedate the appointment of the petitioner as Jr. Clerk to 08.07.1998 and to allow or consequential service benefits to the petitioner pursuant to such antedating;

And/Or pass such order as may be deemed just and proper in the circumstances of the case:"

4. It is submitted that the petitioner and two other candidates namely, Manoj Kumar Mishra and Rabindra Kumar Rout were selected for appointment as Junior Clerk/Junior Assistant in the Directorate of TE & SCERT, Odisha, Bhubaneswar way back in the year 1983. They were however, not appointed for some reason or the other and it is alleged that some outsiders came to be appointed. All the

three approached the erstwhile Odisha Administrative Tribunal by filing separate Original Applications. The Original Application filed by Rabindra Kumar Rout was disposed of in the year 1998 directing the authorities to give him appointment. Accordingly, He was given appointment on 04.07.1998. In so far as the present petitioner and Manoj Kumar Mishra are concerned, the Original Applications filed by them were disposed of in the year 2003. The Tribunal relied upon its own order passed in respect of Rabindra Kumar Rout and directed the authorities to issue appointment orders in their favour. The petitioner was appointed vide order dated 07.10.2009. Manoj Kumar Mishra was also appointed on the same day. According to the petitioner as well as said Manoj Kumar Mishra, their date of appointment ought to have been 04.07.1998, i.e., the date on which their immediate junior in the select list, namely Rabindra Kumar Rout was given appointment. Challenging such inaction of the authorities, Manoj Kumar Mishra again approached the Tribunal by filing an Original Application, which was transferred to this Court and registered as W.P.(OAC) No. 06 of 2015. A coordinate Bench of this Court by judgment passed on 16.05.2023 allowed the writ application by inter alia passing the following order.

"8.2. In the counter as well as the affidavit filed by the O.P. No. 2 it is also admitted that when some outsiders were appointed as against the post for which the select list was published on 24.10.1992, the same was challenged by the present Petitioner in O.A. No. 1973(C) of 1993 and by Sri Rabindra Kumar Rout in O.A. No. 2026(C) of 1993. It is also admitted that pursuant to the order passed in O.A. No. 2026(C) of 1993, the applicant Rabindra Kumar Rout was provided with the appointment vide order dtd.08.07.1998. In the affidavit filed by the O.P. No. 2 on 16.05.2023 it is also admitted that the order dtd.19.03.2009 is in the nature of observation. In view of such factual position and taking

into account the benefit extended in favour of the Petitioner in O.A. No.2026(C) of 1993, the Petitioner being placed above him in the select list so published on 24.10.1992 under Anenxure-2/1, it is the view of this Court that the Petitioner is eligible and entitled to get the benefit of appointment w.e.f.04.07.1998. Therefore, this Court while taking such a view is inclined to quash the order dtd.9.04.2013 so passed by the O.P. No. 1 under Annexure-4. While quashing the same, this Court directs the Opp. Parties to antedate the date of appointment of the Petitioner to 08.07.1998, but the same be made only on notional basis. The Petitioner will not be eligible and entitled to get any financial benefit for such antedating of his appointment to 08.07.1998. However, the Petitioner will be entitled to get other service benefits as due and admissible."

5. Mr. S. Mishra would submit that the order passed by the coordinate Bench in the case of Manoj Kumar Mishra is squarely applicable to the petitioner in view of the fact that both of them were appointed pursuant to the order passed by the Tribunal. Further, the petitioner stands on an even better footing inasmuch as his position in the select list is at serial No. 18. Mr. Mishra therefore, urges the Court to pass similar order.

6. Mr. I. Mohanty, learned State Counsel while fairly admitting that the petitioner's case is in principle covered by the judgment passed by the coordinate Bench in the case of Manoj Kumar Mishra [W.P.(OAC) No. 06 of 2015 decided on 16.05.2023] however submits that there is no material on record to show the position of the petitioner in the select list. He therefore, submits that the petitioner's claim for antedating his appointment can only be considered by the authorities with reference to the select list.

7. In view of what has been discussed hereinbefore and on consideration of the rival contentions, this Court is of the view that the case of the petitioner is squarely covered by the

judgment passed by this Court in Manoj Kumar Mishra (supra). As regards the apprehension of learned State Counsel in relation to the inter se position of the petitioner in the select list, the same is a matter that can be addressed by the authorities by referring to the original select list.

8. For the foregoing reasons therefore, the writ petition is disposed of in terms of the judgment passed by the coordinate Bench of this Court in Manoj Kumar Mishra (supra) with a further direction that necessary orders shall be passed with regard to the revision of the date of the appointment of the petitioner and other service benefits as early as possible, preferably within a period of two months from the date of production of certified copy of this order.

(Sashikanta Mishra) A.K. Rana Judge

Si gn atu re No t Ve rifi ed

Digit ally Sign ed Sign ed by:

AJA YA KU MA R RAN A Desi gnati on:

Pers onal Assi stant Rea son:

Auth entic ation Loca tion:

High Cour t of Oris sa, Cutt ack Date : 26-

Sep-

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