Orissa High Court
Manas Kumar Mohanta vs State Of Odisha & Another .... Opp. ... on 15 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 38828 OF 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
Manas Kumar Mohanta .... Petitioner
-Versus-
State of Odisha & Another .... Opp. Parties
Advocates appeared in this case:
For Petitioner : M/s. Sameer Kumar Behera & A. Jena,
Advocates
For Opp. Parties : Mr. U.C. Behura,
Addl. Government Advocate
Mr. A. Khandelwal, Advocate on behalf of
Mr. D.R. Bhokta, Advocate
[OP No.4)
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
JUDGMENT
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Date of hearing & judgment :: 15.09.2025
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PER DIXIT KRISHNA SHRIPAD,J.
Petitioner was issued Appointment Order dated 18.07.2022, a copy
whereof avails at Annexure-4, as Assistant Training Officer, having been
successfully selected in the recruitment process. The appointment order
prescribed 15 days for reporting to duty. However, petitioner could not
report because of long illness & hospitalization. He made a representation
dated 17.10.2022 for issuance of the appointment order after condoning
delay, if any, on medical grounds. The same came to be rejected by the
Director of Technical Education, vide order dated 14.03.2023, on the
ground that after long lapse of time, the appointment withers away and
vacancy is restored for next recruitment process. Aggrieved thereby, he is
before this Court.
2. Learned counsel for the petitioner submits that public employment
is scarcely available now a days; competition too is very high; no sane
person, who has been selected & appointed to the post of the kind, would
ever remain away; there was health issue with his client and therefore,
within the stipulated period he could not report for duty nor could he
request for the extension of period for reporting. In such a circumstance,
this Court should come to the aid of meritorious candidate like his client.
3. Learned AGA appearing for the OPs vehemently opposes the
petition making submission in justification of the impugned order. He
contends that once appointment order is issued, the candidate should
report for duty in time or at least make a request for extension of period
for reporting; this having not been done, the appointment order has been
liquidated by operation of law and eventual vacancy would go for
imminent recruitment. He draws attention of the Court to Office
Memorandum dated 20.09.2019 (Annexure-7) in support of his
contention. Having so contended, he seeks dismissal of petition.
4. Having heard learned counsel for the parties and having perused
petition papers, this Court is inclined to grant indulgence in the matter as
under and for the following reasons:
4.1. The recruitment process began with the issuance of Notification
dated 24.12.2016. The selection process having been accomplished duly,
petitioner came to be selected followed by issuance of appointment order
dated 18.07.2022 for the post of Assistant Training Officer. The
appointment order specified 15 days for reporting duty, is true. However,
petitioner could not report for duty nor could he request for extension of
period because of acute ill-health, for which he was taking long treatment.
Learned counsel for the petitioner is right in telling that no sane person
would remain away from employment once selected and appointed, in
these days of scarcity of government jobs.
4.2. Learned AGA is right to some extent in telling the Court that when
time is specified, the candidate should report for duty before the expiry of
the said period or at least he is expected to request for the extension of
said period; both having not happened, no mercy can be shown to the
petitioner. Broadly viewed, this is a text book argument. Once appointed,
a right accrues to the citizen. Of course, such accrual is subject to certain
conditions, which would apply during the normal period. During the
abnormal period like acute ill-health, accident or the like expecting the
candidate to inform or request for extension may not be proper. What one
has to see is whether the cause shown by him is plausible or not and once
the cause for not reporting nor seeking extension is plausible, ordinarily,
the request for issuance of appointment order cannot be turned down. An
argument to the contrary would be bereft of elements of justice, although
it may serve literal interpretation of the Executive Guidelines. A Writ
Court is not only a Court of law but the Court of justice.
4.3. The Office Memorandum dated 20.09.2019, a copy whereof avails
at Annexure-7, at clauses 2,3,4 & 5 read as under:
"2. If, however, within the stipulated period of 30 days, a request
is received from the candidate for extension of time to join the
post/ service as per the offer of appointment, it may be considered
by the appointing authority/ authority delegated with such powers
and if satisfied, an extension for a limited period may be granted
but the total period granted including the extension during which
the offer of appointment will be kept open, should not exceed a
total period of six months. The candidates who join within the
above period of six months will avail their seniority as per their
position in the select list.
3. If even after the extension(s), if any, granted by the competent
authority, a candidate does not join within the extended time
(which shall not exceed six months) the order of appointment will
lapse automatically after expiring of six months from the date of
issue of the original offer of appointment. A formal order to that
effect shall be issued by the establishment concerned.
4. An offer of appointment which has lapsed, should not ordinarily
be revived. In exceptional circumstances, the same shall only be
revived in the public interest. The revival of such offer of
appointment is not admissible after one year from the date of
approval of the select list or publication of the select list of the
subsequent recruitment whichever is earlier The GA & PG
Department should in all cases be consulted before such offers
are revived.
5 In a case, where after the lapse of the order of appointment, the
same is revived in consultation with the GA & PG Department,
the seniority of the candidate concerned shall be fixed below those
who have already joined the post/service within the stipulated
period of six months"
4.4. The above Office Memorandum is in the nature of Executive
Instruction and therefore, cannot be interpreted as a statute of
Westminister Abbey, literally. "Portia's knife" in Shakespeare's
Merchant of Venice will not much come to the aid in adjudicatory
process, that involves a dispute touching the means of livelihood. Even at
Clauses 3 & 4, the said Memorandum contemplates revival of lapsed
vacancy in public interest. That would come to the aid of petitioner.
Learned AGA on the instruction of this Court has secured information
vide letter dated 11.09.2025, wherein it is stated that there are 14
vacancies in the cadre of Assistant Training Officer. In fact, the impugned
order has not taken into account these relevant aspects.
Lastly, even though under Clause 3 of the above Office
Memorandum the lapse of appointment stated to be automatic, the said
clause specifically states that a formal order to that effect has to be issued
by the concerned establishment. In the Counter, nothing has been stated
about this compliance.
4.5. All the above being said, learned AGA is more than justified in
contending that the petitioner being at fault in not reporting for duty
within the prescribed period nor having sought for extension of the
period, no seniority can be granted to him nor any financial benefits
either. If at all he is to be appointed, it shall be a fresh appointment for all
purposes. This is absolutely fair & reasonable. In fact, Clause 5 of Office
Memorandum, which is reproduced above, states it in so many words.
This clause is made to mitigate the prejudice that may be caused to the
Public Exchequer and to protect the seniority of other appointees.
In the above circumstances, this petition succeeds in part; a Writ of
Certiorari issues quashing the impugned order at Annexure-10 coupled
with a Writ of Mandamus to OP No.2 to issue fresh appointment order in
favour of the petitioner to the post in question within six weeks. It is
made clear that petitioner shall not be entitled to any service benefit by
way of seniority, emoluments or the like. In other words, it shall be a
fresh appointment.
Now, no costs.
Web copy of the judgment to be acted upon by all concerned.
Dixit Krishna Shripad
Judge
Orissa High Court, Cuttack
The 15th day of September, 2025/Prasant
Signed by: PRASANT KUMAR SAHOO
