Orissa High Court
Subash Chandra Nayak vs State Of Odisha & Others .... Opp. ... on 17 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 39024 OF 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
Subash Chandra Nayak .... Petitioner
-Versus-
State of Odisha & Others .... Opp. Parties
Advocates appeared in this case:
For Petitioner : M/s. Sidheswar Mallik,
P.C. Das, M. Mallik &
S. Mallick, Advocates
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
JUDGMENT
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Date of hearing & Judgment :: 17.09.2025
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PER DIXIT KRISHNA SHRIPAD,J.
Shorn off thickness of the petition paper book, the essential
grievance of the petitioner is as to denial of promotion w.e.f. 30.11.2022,
promotion having been granted with effect from 20.02.2023.
2. Learned counsel appearing for the petitioner submits that when in
the Seniority List his client figures at serial no.2 above his juniors, the
promotion accorded to the juniors at least should be the basis for altering
his date of promotion from 20.02.2023 to 30.11.2022; that pursuant to the
advertisement dated 23.07.2013, he, along with others, was selected as
Junior Assistant on 10.09.2015 and accordingly all the selectees were
issued appointment order dated 16.10.2015 describing the same as
contractual. Therefore, petitioner, as also others had approached the
Orissa Administrative Tribunal (OAT), as it then was. Petitioner's O.A.
No.7(C) of 2018 came to be allowed on 13.03.2018 to the effect that his
status should be of regular appointment, as distinguished from
contractual. Counsel adds that his client had reported for duty on
30.08.2019, pursuant to OAT order dated 13.03.2018, and that cannot be
faltered, inasmuch as the offer of regular appointment itself was made
belatedly. So arguing, he seeks for the allowing Writ Petition.
3. Learned AGA appearing for the OPs vehemently opposes the
petition succinctly contending that in the OAT order dated 13.03.2018
entered in O.A. No.7(C) of 2018, there is no direction that the petitioner
should be given service or monetary benefits for the period that preceded
his actual joining date or for the grant of notional benefits; petitioner
admittedly having joined service only on 30.08.2019, his claim for
promotion with retrospective effect cannot be considered. He also tells
the Court that in the Rule position, promotion is on 'seniority-cum-merit'
basis. So contending, he seeks dismissal of the writ petition.
4. Having heard learned counsel for the parties and having perused
the petition papers, this Court is inclined to grant a limited indulgence in
the matter as under and for the following reasons.
4.1. The foundational facts are not in dispute: There was advertisement
for regular recruitment issued on 23.07.2013; petitioner, along with
others, came to be selected in terms of Select List dated 10.09.2015 for
the post of Junior Assistant. Appointment order was issued on 16.10.2015
describing it as contractual; the challenge to same by the petitioner in
O.A. No.7(C) of 2018 having been favoured on 13.03.2018, the
appointment was to be treated as regular, and accordingly petitioner
joined service on 30.08.2019. When others appointed in the very same
recruitment process had reported for duty even as contractual employees,
what prevented the petitioner from following the suit, remains
ununderstandable. Therefore he cannot be granted notional benefit of
service for the period anterior to his actual appointment dated
30.08.2019, be that as it may.
4.2. Petitioner reported for duty with effect from 30.08.2019 and it was
because of issuance of the appointment order pursuant to direction of
OAT vide order dated 13.03.2018. No explanation is offered from the
side of OPs as to why the OAT order was not implemented for more than
a year and therefore, they cannot take the benefit of their own wrong in
implementing that order after brooking a lot of delay. If that delay is kept
in view, the contention of learned AGA that the subject Rules required
three years of service, and petitioner did not have it, would fall to the
ground. Therefore, while computing the three year period, the reckoning
point should be 13.03.2018, i.e., the date when he succeeded before the
OAT.
4.3. Whatever be the matter, when juniors are promoted as Assistant
Section Officers with effect from 30.11.2022, petitioner ought to have
been given the promotion with effect from that date itself, whereas he has
been promoted only on 20.02.2023, which is ununderstabale. Except
ritualistically quoting the extant rule requiring three years of service, the
impugned order is not animated with sense of law, reason or justice. It
only reflects Macaulay Mindset and Colonial Hangover of the
jurisdictional officials and that would be an error apparent on the face of
the record, warranting indulgence of this Court.
In the above circumstances, Writ Petition succeeds in part; a Writ
of Mandamus issues to the OP Nos.2 & 3 to alter petitioner's effective
date of promotion as 30.11.2022 and grant him all service & monetary
benefits such as differential of pay, etc. accruing by virtue of that, within
a period of eight (8) weeks, failing which the delay would carry interest
at the rate of 1% per mensem till actual payment is made and that the
interest component may be recovered from the officials errant.
Now, no costs.
Web copy of judgment to be acted upon by all concerned.
Dixit Krishna Shripad
Judge
Orissa High Court, Cuttack
The 17th day of September, 2025/Anisha
Location: High Court of Orissa, Cuttack
