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.
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
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
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-
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
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.
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.
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
