[Cites 2, Cited by 0]
Orissa High Court
State Of Odisha vs Dr. Swarupa Nanda Mallick on 24 March, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.832 of 2024
State of Odisha .... Appellant
Mr. S.K. Jee, AGA
-versus-
Dr. Swarupa Nanda Mallick .... Respondents
& another
Mr. S.K. Das, Advocate
For Respondent No.1
Mr. A. Behera, Advocate
for Respondent No.2
CORAM:
JUSTICE KRISHNA SHRIPAD DIXIT
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 24.03.2026
06. State and its officials have preferred this Intra-Court
Appeal. They call in question a learned Single Judge's order
dated 02.05.2023 entered in Respondent's W.P.(C).(OAC) No.
853 of 2018 & W.P.(C)(OAPPC) No.282 of 2016, whereby a
direction has been issued to the OPSC to recommend name of the
Respondent for the post of Assistant Professor of Surgery
coupled with a direction to the Appellants to issue appointment
order in terms of such recommendation.
2. Learned AGA appearing for the Appellants submits that
earlier the OPSC had sent the Waiting List at the instance of the
Government itself; however, because of certain litigations that
were fought at the level of the Hon'ble Apex Court, OPSC was
directed to withdraw the Waiting List and accordingly, it
withdrew. He also submits that, power to issue a direction would
also include the power to recall the direction and to undo what
has been done pursuant to such direction in view of Section 22 of
the Orissa General Clauses Act, 1937. This aspect having not
been considered by the learned Single Judge, there is an error of
great magnitude warranting interference of this Court.
3. Learned counsel representing the private Respondent
vehemently opposes the Appeal contending that the principle of
Section 22 would not be applicable in matters like this; the
Government itself had directed the OPSC and accordingly the
Waiting List was prepared and submitted; abruptly, the
Government could not have turned around and instructed the
OPSC to recall the Waiting List, quoting certain untenable
grounds. He also tells that his client has been working as
Associate Professor of Surgery on ad hoc basis and justice would
have been served to him by virtue of impugned order of the
learned Single Judge and therefore, regardless of arguable
infirmities in the impugned order, this Court should not interfere.
Learned Panel Counsel appearing for the OPSC maintains
equidistance from both the sides and tells that his client has
already submitted the Waiting List in terms of the impugned
order to the Government.
4. Having heard learned counsel for the Parties and having
perused the Appeal papers, we decline indulgence in the matter
for the following reasons:
4.1. The Government, which had directed the OPSC to prepare
and submit a Waiting List, all of a sudden, could not have turned
around and recalled its instructions to the OPSC, which had
already acted upon such instructions. In such a situation, we are
not sure if the Rule underlines Section 22 of 1937 Act would be
readily invokable. That apart, ours is a Government by Rule of
law and therefore, all its actions should be animated by reason,
justice and fair play, arbitrariness being anathema to the Rule of
law vide E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC
555). The reasons assigned by the Government in instructing the
OPSC to recall the Waiting List are not germane to the issue.
Therefore, the action of the Government being vulnerable
learned Single Judge has rightly interfered with the same.
4.2. Learned counsel appearing for the private Respondent is
right in telling the Court that his client being absolutely qualified
has been discharging his duty as Associate Professor of Surgery,
of course, on ad hoc basis. The experience, which a candidate
like this has acquired in the course of employment, has its own
advantage in public service. It is not that his client would be
made Associate Professor of Surgery on regular basis, if the
impugned order is implemented. What he would get would be the
post of Assistant Professor on Regular basis. Thus, even equity
weighs towards the Respondent. All this is inarticulately viewed
in the impugned order.
4.3. Learned counsel appearing for the private Respondent is
more than justified in contending that his client should be given
notional benefit of retrospective appointment with effect from the
date first of the appointment made pursuant to OPSC Select List
dated 17.10.2017. He is fair in submitting that his client would
not lay a claim for any financial benefits of the previous service.
We agree with this.
In the above circumstances, this Appeal being devoid of
merits is liable to be dismissed and accordingly it is. The
impugned order of the learned Single Judge shall be given effect
to in letter & spirit within an outer limit of eight (08) weeks
keeping in view our observations hereinabove, failing which, the
Appellants run the risk of contempt action.
Cost having been made easy.
Web copy of this order to be acted upon by all concerned.
(Krishna Shripad Dixit)
Judge
(Chittaranjan Dash)
Judge
Bijay/Sarbani
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 25-Mar-2026 18:44:52
