Orissa High Court
Jamini Mohan Mohanty vs Commissioner-Cum-Secretary ....... ... on 27 October, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 16480 of 2014
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Jamini Mohan Mohanty ....... Petitioner
-Versus-
Commissioner-cum-Secretary ....... Opposite Parties
in Water Resources Department,
Bhubaneswar and others
For the Petitioners: - Mr. Laxmikanta Tripathy,
Advocate
For the Opp. Party: - Mr. Partha Sarathi Nayak,
Addl. Govt. Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE S.K. SAHOO
AND
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
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Date of Hearing and Judgment: 27.10.2025
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By the Bench: This writ petition has been filed by the
petitioner-Jamini Mohan Mohanty challenging the order
dated 17.07.2014 passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No. 805 (C) of
2009 in dismissing the Original Application.
2. Heard Mr. Laxmikanta Tripathy, learned counsel
appearing for the petitioner and Mr. Partha Sarathi Nayak,
learned Additional Government Advocate for the State.
3. The Original Application was filed by the
petitioner to quash the order dated 24.03.2009 passed by
the Chairman-in-charge of Arbitration Tribunal, Odisha in
which the petitioner was reverted to the post of Junior
Assistant and was relieved from the Tribunal due to his
reversion, with a further prayer to the opposite parties to
allow him to continue in the post of Section Officer, Level-II
of the Arbitration Tribunal, Odisha, Bhubaneswar.
FACTS Of THE CASE:
4. A terse and brief narration of facts is provided for
clear understanding and appreciation:-
(a) The case of the petitioner, in short, is that the
Arbitration Tribunal was created under the Irrigation and
Power Department of Government of Odisha without giving
any definite status and the office was functioning under the
Irrigation and Power Department.
(b) In the year 1978, one post of L.D. Assistant and
other posts was created. On 08.01.1980, the District
Employment Exchange Officer was asked to sponsor the
names of suitable candidates for the post of L.D. Assistant.
On 24.01.1980, the Employment Exchange sponsored the
names of seventeen candidates including the petitioner.
(c) When the matter stood thus, on 19.01.1980, the
Chairman, Arbitration Tribunal was declared as the Head of
the Department with effect from 19.01.1980.
(d) On 04.02.1980, the petitioner was selected and
appointed for the single post of L.D. Assistant on the basis
of the written test and interview, and the petitioner also
joined in the said post on 29.02.1980.
(e) The opposite party no.3-P.C. Kanungo was
appointed about four years thereafter, i.e., on 25.04.1984
in the same post, as per the OMS Rules, 1975.
(f) The Chairman, Arbitration Tribunal, vide letter
dated 18.03.1985, requested the F.A.-cum-Deputy
Secretary to Govt., I & P Department to regularize the
service of the petitioner under OMS Rules by virtue of the
provision of Section 14 of the said OMS Rules. The F.A.
-cum- Deputy Secretary to Govt., I & P Department in
reference to the aforesaid letter dated 18.03.1985,
regularized the service of the petitioner from the date of
initial joining in the public interest by virtue of the
relaxation provision of Rule 14 of the OMS Rules, 1975.
After relaxation and regularization, the petitioner was
promoted to the post of Senior Assistant on 11.07.1985 and
at that point of time, the opposite party no.3 did not raise
any objection to the said promotion of the petitioner as
Senior Assistant.
(g) Subsequently, the provisional gradation list was
prepared in the rank of Senior Assistant and circulated
inviting objections on 28.10.1995 wherein the petitioner's
name found place at sl.no.1 and the name of the opposite
party no.3 found place at sl.no.2 and by then, the petitioner
had already completed ten years as Senior Assistant. At
that stage as well, no objection was submitted by opposite
party no.3 and, therefore, the said gradation list became
final by order dated 19.12.1995.
(h) The petitioner completed the Accounts training
and cleared the Departmental test and was eligible for
consideration for promotion to the higher rank and the
D.P.C. also found the petitioner suitable and recommended
his name for promotion and the petitioner was promoted to
the rank of Section Officer, Level-II on 01.01.1996 and
continued in the said post till the impugned order dated
24.03.2009 was passed.
(i) It seems that the opposite party no.3 by coming
out of deep slumber submitted a representation for fixation
of his seniority over the petitioner after a long delay of
thirteen years of finalization of the gradation list and
twenty-three years of delay of regularization of the service
of the petitioner so also after thirteen years of promotion of
the petitioner to the rank of Section Officer, Level-II. The
F.A. -cum- Deputy Secretary to Govt., I & P Department
directed the Chairman, Arbitration Tribunal to revise the
gradation list dated 19.12.1995 and fixed the seniority of
the opposite party no.3 over the petitioner after a long
delay of thirteen years of finalization of the gradation list.
(j) In accordance with the order of the F.A. -cum-
Deputy Secretary to Govt., I & P Department dated
17.03.2009, the Chairman, Arbitration Tribunal on
24.03.2009, revised the final gradation list dated
19.12.1995 and placed the opposite party no.3 at sl.no.1
and placed the petitioner at sl.no.4 and not only the
petitioner in the said order was reverted from the post of
Section Officer to Junior Assistant, but also since there was
no other sanctioned post of Junior Assistant available, the
petitioner was relieved from his service after serving more
than twenty-nine years and the petitioner remained out of
service and without pay till he attained the age of
superannuation on 30.03.2013.
(k) The petitioner challenged the aforesaid order
dated 24.03.2009 before the learned Odisha Administrative
Tribunal in O.A. No. 805 © of 2009. The learned Tribunal
rejected the Original Application.
SUBMISSION OF THE PETITIONER:
5. It is the contention of the learned counsel for the
petitioner that the learned Tribunal prior to passing of the
impugned order passed an interim order on 30.03.2009,
wherein the learned Tribunal stayed the impugned order of
reversion dated 24.03.2009, if already not given effect to.
However, even though the petitioner was reverted to the
post of L.D. Assistant, but due to filling up of the said post
from persons recruited through OMS cadre, no post was left
vacant and the petitioner remained out of job. Though the
petitioner in pursuance of the order dated 30.03.2009
passed by the learned Tribunal submitted his joining report
to the Chairman, Arbitration Tribunal along with certified
copy of the impugned order, but the Chairman, Arbitration
Tribunal rejected the said joining report of the petitioner
and the petitioner remained out of job without any
engagement and without any salary. Accordingly, the
learned Tribunal vide order dated 23.02.2012, directed the
opposite party nos.1 and 2 to adjust the petitioner against
the vacant post of L.D. Assistant for drawl of his duty pay
till final disposal of the Original Application without
prejudice to the petitioner's claim for continuance as
Section Officer within a period of fifteen days. After one
year of passing of such order by the learned Tribunal, the
Government vide letter dated 07.02.2013 asked the
petitioner to submit the joining report to the Chairman,
Arbitration Tribunal for the post of L.D. Assistant and
accordingly vide letter dated 14.02.2013, the Chairman,
Arbitration Tribunal directed the petitioner to submit the
joining report and the petitioner submitted the joining
report on 18.02.2013 and requested for sanction of E.O.L
till 30.03.2013 due to ill health of the petitioner and the
petitioner retired on attaining the age of superannuation on
30.03.2013.
The contention of the learned counsel for the
petitioner is that when the name of the petitioner was
sponsored by the Employment Exchange along with other
sixteen candidates and at that point of time, the same was
the procedure followed for appointment to the post of Lower
Division Assistant and the written test and interview were
held and the petitioner got selected, no fault can be found in
the process of appointment of the petitioner. Accordingly,
the petitioner joined the post of L.D. Assistant rightly and
the opposite party no.3 born in the cadre about four years
thereafter and thus, the petitioner was senior to the
opposite party no.3 in all respect. The petitioner's service
was regularized from the date of initial joining in the public
interest by virtue of relaxation provision under Rule 14 of
the OMS Rule, 1975 and thereafter he was also promoted to
the Senior Assistant on 11.07.1985. The gradation list was
prepared and at the time of preparation of the gradation list
also, the opposite party no.3 never raised any objection and
thus at a belated stage, considering his representation for
fixation of seniority, which was about thirteen years after
the finalization of the gradation list, the petitioner's seniority
should not have been disturbed and ultimately he should
not have been reverted to a lower post and since no such
post was available, he was relieved from his service.
Learned counsel for the petitioner submitted that the
learned Tribunal was not justified in passing the impugned
order and it is liable to be set aside. Since the petitioner has
already retired from service and only he has to get the
pensionary benefits, the impugned order should be set aside
and the petitioner may be given necessary reliefs.
SUBMISSION OF OPPOSITE PARTY:
6. Mr. Nayak, learned Additional Government
Advocate for the State has placed reliance in the case of
State of Orissa and others -Vrs.- Smt. Sukanti
Mohapatra and others reported in Vol.75 (1993)
Cuttack Law Times 842, wherein considering Rule 14 of
the OMFS Rule, the issue raised, is as follows:-
"3. In the backdrop of these provisions the
question which arises for consideration is
whether the appointments of candidates made
dehors these rules could be „regularised‟ in
exercise of the power of relaxation conferred on
the government by the aforequoted Rule 14 of
the rules, and if yes, whether such irregular
appointees whose services have been
regularized under Rule 14 could be placed
above the regularly appointed incumbents in
seniority on the basis of the length of service?"
The Hon'ble Supreme Court answered the issue in
paragraphs-9, 10 and 11 of the aforesaid judgment, which
reads as under:-
"9. In the present case also the appointments of
the employees whose services are sought to be
regularised were dehors the Rules. Rule 14
merely permits relaxation of any of the
provisions of the Rules in public interest but not
the total shelving of the Rules. The orders do not
say which rule or rules the Government
considered necessary and expedient in public
interest to relax. What has been done under the
impugned orders is to regularise the illegal entry
into service as if the Rules were not in existence.
Besides the reasons for so doing are not set out
nor is it clear how such regularisation can sub-
serve public interest. Rule 14 has to be strictly
construed and proper foundation must be laid for
exercise of power under that rule. The Rules
have a limited role to play, namely, to regulate
the method of recruitment, and Rule 14 enables
the Government to relax any of the requirements
of the Rules pertaining to recruitment. The
language of Rule 14 in the context of the
objective of the Rules does not permit total
suspension of the Rules and recruitment dehors
the Rules. In the present case the recruitments
had taken place years back in total disregard of
the Rules and now what is sought to be done is
to regularise the illegal entry in exercise of
power under Rule 14. Rule 14, we are afraid,
does not confer such a blanket power, its scope
is limited to relaxing any rule, e. g., eligibility
criteria, or the like, but it cannot be understood
to empower Government to throw the Rules
overboard. If the rule is so construed it may not
stand the test of Article 14 of the Constitution.
The proviso to Rule 13 can come into play in the
matter of fixation of seniority between
candidates who have successfully cleared the
examination and a candidate who cleared the
examination after availing of the benefit of
relaxation. We are, therefore, of the opinion that
the Tribunal committed no error in
understanding the purport of Rule 14.
10. The Tribunal's order in review is assailed on
the ground that it had no justification to reverse
its earlier order by which it had held that the
challenge was time-barred. The Tribunal
exercised the review jurisdiction as it had failed
to notice the correct provision and had, therefore
applied the wrong provision in declaring the
proceedings time-barred. The Tribunal rightly
points out that since the cause of action had
arisen prior to the establishment of the Tribunal,
the proceeding stood governed by section
21(2)(a) and not section 21(1)(a) of the
Administrative Tribunals Act, 1985, which it had
wrongly invoked. We, therefore, see no merit in
this challenge.
11. Now even though the Tribunal came to the
conclusion that Rule 14 did not permit
regularisation made under the impugned orders
of January 3, 1985 and February 14, 1985, it,
having regard to the, long service put in by the
employees named in the said two orders and on
compassionate considerations has supported the
regularisation under Article 162 of the
Constitution. It has moulded the relief on such
considerations. Since that part of the order has
not been assailed and since the appellants
cannot be worse of by appealing, we cannot
interfere with that part of the order. It will,
therefore, be worked out as directed by the
Tribunal but we may clarify that it will not have
the effect of disturbing the seniority of regular
appointees who will rank senior to the irregular
appointees. We may also clarify that any benefit
derived by the irregular appointees under any
interim orders contrary to the relief moulded by
the Tribunal shall be adjusted and brought in
tune with the said relief. The benefit of this relief,
to the extent relevant, will be given to irregular
appointees covered under both the impugned
orders of January 3, 1985 and February 14,
1985."
Mr. Nayak, learned Addl. Govt. Advocate by
relying upon the aforementioned judgment submits that the
Hon'ble Supreme Court has already construed the scope and
ambit of Rule-14 of OMS Rules. In the absence of any
specific reason being assigned, the authority while
exercising the relaxing power under Rule-14 of the OMS
Rule cannot regularize an irregular appointment. He has
relied upon the findings recorded by the learned Tribunal in
the impugned order to elaborate his argument. The learned
Tribunal has, inter alia, observed as under:-
"In the Civil Appeal No. 1347 of 1993 arising out
of SLP (C) No. 18926/1991 State of Orissa Vrs.
Sukanti Mohapatra Hon‟ble Apex Court has held
"Rule-14 of OMS Rules, 1975 requires that the
reasons in support of action being taken in public
interest must be stated in writing. Rule-14
merely permits relaxation of any of the provision
of the Rules in public interest, but not total
shelving of the Rules. The orders do not show
which rule or rules the Government considered
necessary and expedient in public interest to
relax. Rule-14 of OMS Rules, 1975 states "when
the Government are of opinion that it is
necessary or expedient so to do it may by order,
for reasons to be recorded in writing relax any of
the provisions of these rules in respect of any
class or category of persons in public interest."
In the communication dated 28.06.1985 Govt.
have regularized the applicant in public interest
by virtue of relaxation provision under Rule-14 of
OMS Rules, 1975. But no reasons have been
cited or recorded in writing for such relaxation
nor it states which rules of the OMS Rules, 1975
is relaxed for such regularization. Because of
these deficiencies, we find that the regularization
is not as per ratio of Hon'ble Apex Court
judgment cited above. A proviso to Rule-13
further states that those appointed by relaxation
under Rule-14 shall in that year, rank below
validly recruited candidates. In that view of the
matter Respondent No.3, a regularly recruited
candidate will be treated as senior to the
applicant. Respondent No.3 had joined on
25.05.1984, when regularization order of
applicant (who joined on 29.02.1980) had not
yet been issued and even when it was issued, it
was not in conformity with the judgment of
Hon'ble Apex Court in State of Orissa Vrs.
Sukanti Mohapatra (supra). In view of We this,
we do not find anything illegal or irregular in the
issue of orders at Annexure-4 dated 24.03.2009
in which the gradation list has been issued giving
seniority to Respondent No.3 over the applicant
and reverting the applicant to the post of Junior
Assistant. Hence, we cannot entertain the relief,
as has been prayed for by the applicant in this
O.A."
In view of the aforementioned, Mr. Nayak's
submission is that the judgment of the Tribunal cannot be
found fault with.
7. We have taken into consideration the entire
admitted factual background of the present case and also
considered the judgment cited at the Bar. We are of the
view that the judgment relied upon by the respondent-
State, which was the basis of the impugned order, is
distinguishable from the fact of the present case. The
Hon'ble Supreme Court in Sukanti Mohapatra (supra)
case has interpreted Rule-14 on the basis of the factual
premises that the appointment in that case was irregular.
Therefore, the Court was of the view that irregular
appointment cannot be regularized by employing the
relaxation power provided under Rule-14 of the OMS Rules.
However, the facts of the present case are completely
distinguishable from that of the case in Sukanti
Mohapatra (supra). In this case, the appointment of the
petitioner is not irregular. In fact, due recruitment process
was followed. Seventeen candidates sponsored by the
Employment Exchange had participated in the selection
process and the petitioner was successful in the written test
as well as viva voce test. When the process has already
been started on 08.01.1980, in the midst of the process, on
19.01.1980, the Chairman, Arbitration Tribunal was
declared as Head of the Department. After the Chairman
attaining the status, all the appointment hence under him
was obviously to be done under the OMS Rules. However,
since the recruitment process was already initiated prior to
19.01.1980, the process went on and eventually the
petitioner was selected and joined in the post of L.D.
Assistant on 29.02.1980. Therefore, the appointment of the
petitioner per se was not illegal. Subsequently, his
appointment was validated under Rule-14 of the OMS Rules
and promotions were also given. The petitioner put in
twenty-nine years of service. When the objection to the
provisional gradation list in the rank of Senior Assistant was
invited, the opposite party no.3 did not file the objection,
resulting in the finalization of the gradation list. After lapse
of thirteen years coming out from the deep slumber, the
opposite party no.3 gave a representation to unsettle the
seniority position, which was surprisingly entertained at
such a belated stage and the impugned order was passed
by the Chairman, Arbitration Tribunal.
8. In these fact scenarios of the case, taking clue
from para-11 of the judgment of the Hon'ble Supreme
Court in Sukanti Mohapatra (supra) and in the peculiar
facts of the present case, we are inclined to mould the
prayer made by the petitioner. It is relevant to mention
that opposite party no.3 has chosen not to contest the
present writ petition, which is obvious because he is not
affected in any manner even if the writ petition is allowed.
The petitioner has already superannuated from his service
in the year 2013. Therefore, he would only be entitled to
get pensionary benefits, in the event he succeeds in the
present writ petition. Paragraph-11 of the judgment of the
Hon'ble Supreme Court in Sukanti Mohapatra (supra)
hints towards moulding the prayer depending upon the
facts of the case.
9. Accordingly, the impugned order dated
17.07.2014 passed by the Odisha Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No. 805 (C) of 2009 is
hereby set aside and the respondent-State is directed to
give the pensionary benefits to the petitioner forthwith.
Except the pensionary benefits, the petitioner is not entitled
to any other relief.
10. Granting the aforesaid modified relief to the
petitioner, the present writ petition is partly allowed.
(S.K. Sahoo)
Judge
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 27th October, 2025/Ashok/Swarna
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Location: High Court of Orissa
Date: 31-Oct-2025 10:47:59
