[Cites 7, Cited by 0]

Orissa High Court

State Of Odisha & Another vs Rakesh Kumar Panda & Another on 19 January, 2026

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.A NO.1848 OF 2025

      In the matter of an appeal under Clause-10 of the Letters
      Patent of Patna High Court read with Article-4 the Orissa
      High Court Order, 1948 from an order dated 30.06.2023
      passed by a learned Single Judge of this Court in WPC (OA)
      No.1554 of 2019.
                                 ----
     State of Odisha & another                          ....             Appellants

                                          -versus-

     Rakesh Kumar Panda & another                       ....           Respondents
                     Advocates Appeared in this case

               For Appellants         -       Mr. Pravakar Behera,
                                              Standing Counsel for Transport
                                              Department

               For Respondents -              Mr. Biswabihari Mohanty,
                                              Advocate (R-1)

                                              Mr. S.B. Panda, AGA
                                              (Proforma Respondent)
       CORAM :
              MR. JUSTICE DIXIT KRISHNA SHRIPAD
             MR. JUSTICE CHITTARANJAN DASH
-----------------------------------------------------------------------------------------
                  Date of Hearing & Judgment: 19.01.2026
-----------------------------------------------------------------------------------------

                                                                            Page 1 of 14
 PER KRISHNA S. DIXIT, J.

This Intra-Court Appeal by the State & its Official seeks to

call in question a learned single Judge's order dated 30.06.2023

entered in Respondent's W.P.(C) (OA) No.1554 of 2019. The

operative portions of the order reads as under:-

"6. Having heard learned counsel for the parties and considering the materials available on record and the submissions made by the learned counsel appearing parties, this Court dispose of the Writ Petition in the light of the order passed by this Court on 22.03.2023 in WPC (OA) No.2062 of 2017 and batch."

2. Obviously, the above order because of parity of facts

involved, duplicates the relief granted to the litigants in W.P.(C)

(OA) No.2062 of 2017 between Biplab Kumar Sahoo V. State of

Odisha, along with companion cases disposed off vide order

dated 22.03.2023. Therefore, it is relevant to reproduce the

operative portions of the said order, which is as under:-

"6.1. Placing reliance on the decision of the Hon'ble Apex Court as cited (supra) it is the view of this Court that any clarification issued contrary to the provisions contained in the rule cannot override the statutory rules. Therefore, the action taken by the Opposite Parties in providing appointment to the Petitioners on contractual post relying on the clarification issued on 06.02.2015 under Annexure-6 is not legal and justified.

Therefore, placing reliance on the decision of the Hon'ble Apex Court as well as of this Court as cited (supra) and the benefits extended in favour of similarly situated persons as reflected in Annexure-9, this Court is inclined to quash the order of rejection so passed in the case of Biplap Kumar Sahoo in WPC(OAC) No.2062 of 2017. While quashing the said order, this Court directs the Opposite Parties to extend the benefit of regular appointment in favour of the Petitioners from their initial date of appointment. On such extension of the benefit of regular appointment, all service and financial benefit as due and admissible shall also be extended in favour of the Petitioners. This Court directs the Opposite Party No.3 to complete the entire exercise within a period of three months from the date of receipt of this order."

3. Learned Standing Counsel appearing for the Appellants-

State vehemently urges the following grounds for the

invalidation of impugned order:

3.1. The learned Single Judge grossly erred in granting relief to

the Respondent herein, i.e., the Writ Petitioner in terms of

decision in Biplab Kumar Sahoo supra without adverting to the

arguable merits of the case on its own. In support of this, he

presses into service the decision in Col. (Retd.) B.J. Akkara V. The

Govt. of India, (2006) 11 SCC 709.

3.2. In the order of compassionate appointment dated

18.03.2023 the conditions were perfectly stipulated in consonance

with the Orissa Group-C and Group-D posts (Contractual

Appointment) Rules, 2013 that came to be promulgated on

18.11.2013 and therefore, interference of the learned Single Judge,

was uncalled for.

3.3. The CA Rules, 2013 are very expansive and they are

applicable to any appointment whether regular or compassionate

and therefore, making the same contractual in terms of the said

Rules could not have been faltered. Therefore, these Rules

override the Orissa Civil Service (Rehabilitation Assistance)

Rules, 1990.

4. Learned counsel appearing for the private Respondent in

his usual vehemence opposes the Appeal making submission in

justification of the impugned order and reasons on which the

same has been constructed. He adds that his client was harassed

at the hands of Appellants, by driving him to launch too many

legal battles in which he emerged victorious, stage by stage. He

submits that the Rules relating to compassionate appointment in

any civilised jurisdictions are treated as Special Rules and

therefore, General Rules of recruitment, such as the 2013 Rules

cannot have overriding effect on them. In this connection, he

presses into service Rule 15 of RA Rules, 1990. He also notifies to

the Court that there is a flagrant violation of several orders

passed by the OAT and by the Division Benches, which affirmed

those orders. So contending he seeks dismissal of the Appeal.

5. Having heard learned counsel for the Parties and having

perused the appeal papers, we decline indulgence in the matter

for the following reasons:-

5.1. AS TO DELAY IN FILING THE APPEAL AND CULPABLE LATCHES ATTRIBUTABLE TO STATE FUNCTIONARIES :

(i) This Intra-Court Appeal has been filed after brooking a long

delay of more than 849 days. An application supported by

affidavit seeking condonation accompanies the appeal memo. It

mentions about various litigations fought between the parties,

promulgation of CA Rules, 2013 & their subsequent repeal w.e.f.

17.10.2022. It is also argued that in matters like this, delay would

normally be condoned, regard being had to enormity of

consequences of not condoning delay. It is also said brooking of

delay is not intentional. All this is controverted by the other side.

We are not inclined to condone the delay because: Law of

Limitation is for ensuring peace, repose & justice vide Hurrinath

Chatterji v. Mohunt Mothoor, (1893) L.R. 20 I.A. 183. The sages of

law say that law will not come to the aid of sleepy & tardy. In a

constitutionally ordained State, the Law of Limitation does not

differentiate between State & its subjects. What applies to

commoner, applies to the crown.

(ii) The above view gains support from State of Haryana v.

Chandra Mani, (1996) 3 SCC 132. Long delay would make the right

of opponent to resist the lis a concrete one, subject to all just

exceptions into which the case at hand does not fit. Day in and

Day out we have been observing a plethora of cases and appeals

filed by the State functionaries after brooking enormous delay &

latches. Casual averments are made in the applications seeking

their condonation. More often than not such applications are

paternalistic, some lower rank official will swear to the affidavit.

Except mentioning the routine cause for delay brooked in the

movement of file from table to table, the material particulars are

not stated. Allowing such applications would cause injustice &

hardship to the ordinary citizens, like the Respondents herein.

Justice of the case would be met more by rejecting the request for

condonation of delay than by acceding to, inasmuch as delay is too

long to be condoned and there is no plausible explanation for the

same. Therefore, the subject application is liable to be turned

down.

5.2. CONTENTIONS AS TO CA RULES, 2013 BEING APPLICABLE TO COMPASSIONATE APPOINTMENT:

(i) Learned Standing Counsel very fervently argued that the

claim of the Respondent, i.e. son of the employee who died in

harness on 04.04.2012 was processed under RA Rules 1990;

during the period of processing the CA Rules, 2013 came into

force w.e.f. 18.11.2013, to be precise; the said rules required

stipulation of certain conditions; therefore, the appointment letter

was issued by stipulating those conditions; that being the

position, the same cannot be assailed. Per contra, learned counsel

appearing for the private Respondent opposes this contention

and we agree with that opposition.

(ii) Rule 15 of RA Rules 1990, which reads as under:-

"15. The provision of these rules shall have effect notwithstanding anything to the contrary in any other recruitment rules made under the proviso to Article 309 of the Constitution including the Orissa ex-Service men (Recruitment to the State Civil Services and Posts) Rules, 1985."

Such overriding is conspicuously absent in CA Rules 2013,

though they are promulgated long after the RA Rules were

formulated. The CA Rules do not make any reference to RA Rules

of 1990. If the Rule Maker intended that the 2013 Rules should

govern rehabilitative appointments, it would have in so many

words or impliedly made such a provision in 2013 Rules. Even

otherwise, the Rules relating to compassionate appointment in all

civilized jurisdictions are treated as Special Law that would

override General Law vide generalia specialibus non derogant.

Therefore, the contention of learned Standing Counsel is liable to

be rejected.

5.3. AS TO MAINTAINABILITY OF CHALLENGE TO THE APPEAL:

(i) Learned counsel appearing for the Respondent fervently

opposed the Appeal on the ground of maintainability contending

that the impugned order has been structured by the learned

Single Judge in his Writ Petition in terms of Biplab Kumar Sahoo

Supra, there being no challenge to this lead judgment. Per contra,

learned Standing Counsel, placing reliance on decision of the

Apex Court in Col. (Retd.) B.J. Akkara supra, contends that

Appeal of the kind is maintainable. This decision only reiterates

the observation made in State of Maharashtra vs. Digambar [1995 (4) SCC 683].

(ii) Now let us examine what is observed in Digambar supra, which reads as under:-

"...Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where S.L.Ps are filed by the State against judgments of High Court, such S.L.Ps may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some S.L.Ps in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an S.L.P. or S.L.Ps in other similar matters where it is contended on behalf of the State that non-filing of such S.L.P. or S.L.Ps and pursuing them is likely to seriously jeopardize the interest of the State or public interest."

(iii) The Apex Court although negatived the contention as to

maintainability of challenge of the kind, it specified the

exceptional circumstances for laying the challenge, even when the

lead Judgment having identical factual & legal matrices, has

attained finality, no further challenge having been mounted

thereto. Nowhere in the body of Appeal, a whisper is made about

these circumstances. Therefore, we agree with the contention of

learned counsel appearing for the private Respondent that this

Appeal itself is not maintainable, when the maintainability is

treated in the light of the decision in Col. (Retd.) B.J. Akkara,

supra & other decisions referred to therein.

5.4. AS TO COMPLIANCE ORDER DATED 18.03.2023, WHEREBY COMPASSIONATE APPOINTMENT IS OFFERED:

(i) The submission of learned Standing Counsel that the

compliance order having been passed on 18.03.2023, the private

Respondent could not have any cause of action in respect of his

compassionate appointment, is bit difficult to countenance. As

already mentioned, the bread winner of the family died on

04.04.2012, and that the private Respondent, being the son, has

been hovering in the Court and Tribunal throughout with a

plethora of litigations. Even conditions of the compliance order

make it obvious that all the benefits, which the appointee was

legally entitled to, had it been a case of compassionate

appointment under the RA Rules 1990, have not been made good

since notational benefits are mentioned. The compassionate

appointments are not meant for notional benefits. They are meant

for concrete benefits that should reach the hands of bereaved

family. Otherwise, the very intent & content of the subject Rules

would lose their salt and meaning.

(ii) It hardly needs to be stated that Apex Court in a catena of

decisions has deprecated the practice of harassing members of the

bereaved family, who stake their claim for compassionate

appointment under the Rehabilitative Schemes like RA Rules

1990. It is said that State is the first enemy of citizens. The conduct

of the Appellants in delaying the exercise of appointment leading

to inevitable Court cases one after another, proves this, to say the

least. The bread winner having died in April 2012, years have

rolled, not even a leaf having been turned. By the time the

compassionate appointment letter reaches the hands of

Respondent, that too with erroneous stipulations, much water

has flowed. That apart the conditions mentioned in CA Rules

2013 having been stipulated in the said order, infirmity is

infected, making it vulnerable for challenge.

5.5. STATE TO BE BOTH A MODEL EMPLOYER AND MODEL LITIGANT:

(i) Any standard book on normative constitutions like ours

would say that State & its officials have to conduct themselves as

Model Employers, as observed by the Apex Court in Bhupendra

Nath Hazarika v. State of Assam 2013 (2) SCC 516, and also as a

model litigant, they being mighty and aggrieved citizens being

Lilliputians, in comparison. Claimants of the kind obviously

belong to the lower echelon of the society if not lowest economic

strata. Death of an employee in harness would bring a train of

problems in the family. That is the reason why the civilised

jurisdictions make policies for rehabilitatory appointments. The

claim for such appointment has to be treated on a war footing so

that the purpose of the RA Rules is achieved. However, that has

not happened in this case.

(ii) The conduct of the Appellants in driving the poor

Respondent to a plethora of litigations is nothing but an abuse of

the process of the Court, if not of the law. We are told at the Bar

that the Respondent is fighting another legal battle in CONTC

No.2097 of 2024 pending on the file of learned Single Judge,

which we had for a short time interdicted because of pendency of

this Appeal. It is very difficult to compensate the agony which the

poor Respondent is mercilessly put to. It is said that there is no

legal injury which cannot be compensated by money. We hasten

to add that in life, money is not the panacia. In the totality of facts

& circumstances we are of the considered view a reasonably

amount by way of compensatory-cum-exemplary costs has to be

awarded to the Respondent. We fix it at 1,00,000/- collectively

payable by the Appellants. This amount after payment has to be

recovered from the erring officials of the department who are

responsible for the litigations launched by the Respondent one

after another.