Orissa High Court
State Of Odisha & Another vs Bijaya Kishore Nath & Others on 8 July, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. NO. 2629 OF 2024
Arising out of judgment dated 16.08.2024 passed by a learned Single Judge
in W.P.(C) No. 24545 of 2021.
.......
State of Odisha & Another .... Appellants
-Versus-
Bijaya Kishore Nath & Others .... Respondents
Advocates appeared in this case:
For Appellant : Mr. Subha Bikash Panda,
Addl. Government Advocate
For Respondents : Mr. Bhabani Sankar Tripathy-1, Sr. Advocate
with M/s A. Tripathy & A. Sahoo, Advocates
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
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Decided on: 08.07.2025
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PER DIXIT KRISHNA SHRIPAD, J.
The State is in appeal grieving against a learned Single Judge's
order dated 16.08.2024 whereby respondent-employees' WP(C)
No.24545 of 2021 having been favoured, relief as sought for is accorded.
2. Learned Additional Government Advocate Mr. Panda, appearing
for the appellant-State vehemently argues that the relief of the kind could
not have been granted by the learned Single Judge in view of the law
declared in State of Karnataka v. Umadevi (3),1. He also contends that
learned Judge's reliance on 2013 Resolution dated 17.09.2013 is
unjustified.
3. Learned counsel representing the employees, per contra,
contends that the ratio of Umadevi supra has to remain miles away from
the case of his clients inasmuch as rights have accrued to them under the
State Policy as promulgated under 2013 Resolution, and that promissory
estoppel also comes to the rescue of respondents. He further contends
that the case of respondents is not one of back door entry, inasmuch as
there was selection process duly undertaken as per the extant policy
guidelines. He also presses into service Apex Court decision in
Bhupendra Nath Hazarika v. State of Assam,2 to the effect that the
appellants being the Government/functionaries of the Government have
to conduct themselves as a Model Employer.
4. Having heard learned counsel for the parties and having perused
the appeal papers, we are broadly in agreement with the submission of
learned counsel representing respondent-employees and therefore
decline indulgence in the matter, by giving our reasons as well:
4.1. It is not much in dispute that the respondents did not gain entry to
the service through the back doors. They were subjected to some level
of selection process. Their's is a contractual appointment is apparent
from the records. The Government Resolution dated 17.09.2013 provides
immense support to the case of respondent-employees, inasmuch as all
(2006) 4 SCC 1
AIR 2013 SC 234
they are working against the contractual posts, that are created with the
concurrence of Finance Department. Paragraph 2 of the Resolution reads
as under:
"2. Conditions of Service on Regular Appointment:
(1) Regular Appointments: On the date of satisfactory completion
of six years of contractual service or from the date of publication of
this Resolution, which ever is later, they shall be deemed to have
been regularly appointed. A formal order of regular appointment
shall be issued by the appointing authority.
(2) Pay and other benefits: On regular appointment they shall be
entitled to draw The time Scale of Pay plus Grade Pay with DA and
other allowances as admissible in the corresponding pay band.
(3) Other conditions of service: (a) The other conditions of service
shall be such as has been provided in the relevant recruitment
rules.
(b) The conditions of service in regard to matters not covered by
this Resolution shall be the same as are or as may from time to time
be prescribed by the State Government."
4.2. The vehement submission of learned AGA that the Resolution in
question cannot be much banked upon by the respondents, since it has no
statutory force, is difficult to agree with. Apparently, it is not relatable to
any statute, is not disputed. However, rights may accrue to the citizens
even under Government instruments, which reflect policy decisions
evolved in Executive power. In more or less similar fact matrix, this
Court had an occasion to treat contention of the kind in W.A. No. 1323
of 2023 (State of Orissa v. Chhabindra Kumar Samal) disposed of on
02.07.2025. At paragraphs 7.4 and 7.5, we have observed as under:
"7.4. We have the benefit of going through and referring to the
Resolution dated 29.10.2008 issued by the Government of Orissa
through the Health and Family Welfare Department [annexed and
marked as Annexure-3 to the WPC(OA) No.2710 of 2016]. At
paragraph-E of the said Resolution the Government has ordered as
under:
"E. The contractual Pharmacists who were engaged
against contractual posts will be appointed after
creation of regular posts. But in case of MHU
Pharmacists, they will be appointed on regular basis in
future vacancies."
Though no statutory provision is indicated to support the said
Resolution, it cannot be just lost sight of. After all, when there is
no Statute or Rule occupying the field, it is open to the Government
to promulgate Executive Instructions and the subject Resolution is
one such measure. Justice Felix Frankfurter of U.S. Supreme Court
long ago observed as under:
"An executive agency must be rigorously held to the
standards by which it professes its action to be judged.
Accordingly, if dismissal from employment is based on
a defined procedure, even though generous beyond the
requirement that bind such agency, that procedure
must be scrupulously observed. This judicially evolved
rule of administrative law is now firmly established
and, if I may add, rightly so. He that takes the
procedural sword shall perish with the sword.
These observations have been accepted by the Apex Court as a
Rule in Ramana Dayarama Sehetty v. The International Airport
Authority of India,3.
7.5. Even the Executive Instructions of the kind would attract the
doctrine of promissory estoppel vide Union of India v. M/s Indo-
Afghan Agencies,4 and therefore that would come to the rescue of
respondent-employee. It is relevant to extract the affidavit of a
great jurist of yester decades Mr. N.A. Palkiballa, which the Union
of Government had got filed in relation to Bhopal Gas Tragedy
case in the District Court of New York for repelling the contention
of Union Carbide that the Indian Judiciary was inadequate to treat
cases of the kind. Relevant part of the said affidavit makes
interesting reading and it lends support to the case of employee:
"In Motilal Padampat Sagar Mills v. Uttar Pradesh
(AIR 1979 SC 621) the Supreme Court took the
doctrine of Promissory estoppel (which estops the
government from pleading executive necessity and
going back on its earlier promise) an important step
further, and held that it was not merely available as a
defence but could supply a cause of action for
institution of legal proceedings....
(1979) 3 SCC 489
1968 SCR (2) 366
I have seen the Memoranda and Affidavits filed in
opposition to Union Carbide's Motion regarding
Forum Non Conveniens. In those papers its has been
stated that the Indian legal system is "deficient: and
"inadequate". I am constrained to say that it is
gratuitous denigration to call the Indian system
deficient or inadequate."
Even in B.S.Minhas v. Indian Statistical Institute,5 contention of the
kind was rejected by the Apex Court and relief was granted to the litigant
on the basis of non-statutory bye-laws.
4.3. Above apart, where the State policy provides for certain rights
regardless of statutory support, the violation of such a policy gives a
choate cause of action. The State itself having promulgated such a
policy holding it to the public at large, cannot mindlessly invoke the ratio
in Umadevi supra as priest would chant mantra. The very existence of
such policy takes the case of respondents away from the precincts of said
decision. It need not be stated that a small difference in fact matrix of a
case may render a decision inapplicable.
In the above circumstances, appeal being devoid of merits is
liable to be rejected and accordingly it is, costs having been made easy.
(Dixit Krishna Shripad)
Judge
(M.S. Sahoo)
Judge
Orissa High Court, Cuttack
The 8th Not
Signature day ofVerified
July, 2025/Dutta
Digitally Signed
Signed by: AJIT KUMAR DUTTA
Reason: Authentication5 (1983) 4 SCC 582
Date: 10-Jul-2025 22:12:52
