Orissa High Court
Patent Of Patna High Court Read With ... vs State Of Odisha on 28 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.1581 of 2025
In the matter of an appeal under Section-10 of the Letters
Patent of Patna High Court read with Article-4 the Orissa
High Court Rules, 1948 from a common order dated
04.08.2025 passed by the Single Judge in W.P.(C) No.6579 of
2021.
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Goutam Kumar Jena .... Appellants
-versus-
1. State of Odisha
.... Respondents
2. Director General of Police,
Odisha, Buxi Bazar Road, Cuttack
3. A.I.G. Police Personnel,
Odisha, Buxi Bazar Road, Cuttack
Advocates Appeared in this case
For Appellants - Mr. Shashi Bhusan Jena,
Advocate
For Respondents - Mr. Umesh Chandra Behura,
Addl. Govt. Advocate
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CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment: 28.01.2026
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W.A. No.1581 of 2025 Page 1 of 16
Chittaranjan Dash, J.
1. This intra-court appeal has been preferred by the Appellant being aggrieved by the finding recorded by the learned Single Judge dated 04.08.2025 passed in W.P.(C) No.6579 of 2021. The learned Single Judge having heard the respective parties declined to grant the relief to the Petitioner with following the reasons as follows:
"6.2. Since Petitioner in terms of Annexure-1 advertisement was never appointed as against the post in question and he was so appointed as against the post of Junior Stenographer as a special case in the year 2016 basing on the order passed on 03.05.2016 under Annexure-2, as per the considered view of this Court, Petitioner is not eligible and entitled to get the benefit as prayed for in the present writ petition. Therefore, this Court is not inclined to entertain the writ petition with the prayer as made."
2. The factual matrix of the case, in brief, is that the Appellant applied pursuant to an advertisement dated 23.12.1999 issued by the Odisha Staff Selection Commission for recruitment to the post of Assistant Sub-Inspector of Police (Operator/Mechanic). Though he successfully cleared the written examination, he was disqualified at the stage of physical measurement on the ground that his height was recorded as 161.5 cm, which was below the prescribed minimum height of 163 cm for candidates belonging to the Scheduled Caste category. Questioning the correctness of the W.A. No.1581 of 2025 Page 2 of 16 said measurement, the Appellant submitted representations and thereafter approached the Odisha Administrative Tribunal.
Upon dismissal of his claim by the Tribunal, the Appellant carried the matter before this Court in W.P.(C) No.7974 of 2005. During the pendency of the said writ petition, this Court directed constitution of a Medical Board for re-measurement of the Appellant's height. The Medical Board, upon examination, found the Appellant's height to be 165 cm, whereafter this Court set aside the earlier disqualification and directed the authorities to permit the Appellant to undergo the remaining stages of selection. However, despite repeated litigations, representations, and contempt proceedings spanning several years, the Appellant could not secure appointment to the post of ASI (Operator/Mechanic).
In the interlude, pursuant to directions of this Court and a decision taken at a high-level meeting held on 16.03.2012, the Appellant was advised to apply for the post of Junior Stenographer under the Director General of Police cadre. Although the Appellant was not successful in the selection process for the said post, this Court, by order dated 03.05.2016 passed in W.P.(C) No.7974 of 2005, directed the State authorities to appoint the Appellant as Junior Stenographer. In compliance W.A. No.1581 of 2025 Page 3 of 16 thereof, the Appellant was appointed in the year 2016 and subsequently granted notional benefits to a limited extent.
Thereafter, by order dated 25.11.2017 in W.P.(C) No.7974 of 2005, this Court granted the Appellant certain consequential reliefs, including notional fixation and payment of compensation. Notwithstanding the same, the Appellant instituted W.P.(C) No.6579 of 2021 seeking further retrospective service benefits, including seniority, pay, and pensionary benefits by treating his appointment as relatable to the original recruitment year. The said writ petition came to be dismissed by the learned Single Judge by judgment dated 04.08.2025, giving rise to the present Writ Appeal.
3. Mr. Jena, learned counsel for the Appellant, submits that the learned Single Judge erred in dismissing the writ petition by failing to give due effect to the directions earlier issued by this Court in W.P.(C) No.7974 of 2005, particularly the order dated 25.11.2017. It is contended that the Appellant was deprived of opportunity in public employment on account of arbitrary and illegal actions of the authorities, which resulted in prolonged denial of appointment despite judicial intervention. Learned counsel submits that the delay in the Appellant's appointment is attributable to the employer and not to any fault on the part of the Appellant. In support of such contention, reliance is placed on the W.A. No.1581 of 2025 Page 4 of 16 decision of the Supreme Court in Nirmal Chandra Sinha vs. Union of India, (2008) 14 SCC 29, to contend that where delay in appointment is caused by the employer, the employee is entitled to notional benefits. It is further contended that the learned Single Judge failed to appreciate the ratio laid down in T.R. Dhananjaya vs. J. Vasudevan, (1995) 5 SCC 619 and Mohd. Iqbal Khanday vs. Abdul Majid Rather, (1994) 4 SCC 34, which mandate strict compliance with judicial directions and prohibit the authorities from diluting or circumventing orders passed by the Court. It is further urged that the appointment of the Appellant as Junior Stenographer in the year 2016 cannot be characterised as a contractual appointment, but was in the nature of a remedial appointment made pursuant to the directions issued by this Court to rectify an earlier illegality. Consequently, the application of the Odisha Group-C and Group-D (Contractual Appointment) Rules, 2013 is stated to be untenable. On that basis, learned counsel submits that the Appellant is entitled to retrospective notional appointment with effect from the year 2003 and cannot be brought within the fold of the New Pension Scheme, which came into force in the year 2005.
Learned counsel further contends that the rejection of the Appellant's candidature in the year 2001 was founded solely on an incorrect physical measurement of height recorded by the authorities. It is submitted that such error stood conclusively W.A. No.1581 of 2025 Page 5 of 16 corrected pursuant to the directions issued by this Court in W.P.(C) No.7974 of 2005, whereupon a duly constituted Medical Board found the Appellant to be physically eligible. It is argued that having been wrongly excluded from selection despite meeting the prescribed physical standards at the relevant time, the Appellant cannot be denied the benefit of notional retrospective appointment. Reiterating the above submissions, learned counsel for the Appellant vehemently contends that the initial rejection on the ground of physical fitness was entirely attributable to the authorities and was demonstrably arbitrary. Since the Appellant was ultimately found to satisfy the height requirement upon medical re-examination conducted under judicial directions, the erroneous recording of his height as 161.5 cm in the initial process is stated to be illegal. On this premise, it is contended that the Appellant, having been physically fit at the relevant point of time, is entitled to be notionally appointed with effect from the year 2003 and to all consequential benefits flowing therefrom.
4. Per contra, learned Additional Government Advocate, vehemently opposed the submissions advanced on behalf of the Appellant and supported the impugned judgment passed by the learned Single Judge, contending that the same is in consonance with the facts on record as well as the settled position of law. W.A. No.1581 of 2025 Page 6 of 16 Learned AGA submits that the appointment of the Appellant as Junior Stenographer was made as a special measure, solely in compliance with the directions issued by this Court and not pursuant to the original recruitment process or the advertisement under which the Appellant initially applied. It is contended that such appointment cannot be treated as a regular or retrospective appointment so as to confer consequential service benefits, as now claimed.
It is further submitted that the relief sought by the Appellant is misconceived inasmuch as the Appellant was never appointed against the post for which he had originally applied and, therefore, cannot claim parity with candidates appointed pursuant to the recruitment process of the relevant year. Learned counsel contends that the learned Single Judge has rightly appreciated this distinction while declining the relief. Learned counsel further submits that the Appellant's contention regarding incorrect physical measurement is also untenable. It is argued that the medical re-examination conducted pursuant to judicial directions took place several years after the initial selection process and there exists a reasonable likelihood of progression in height over a period of time, as is also recognised in medical jurisprudence. On this ground as well, the claim for retrospective notional appointment is stated to be unsustainable. W.A. No.1581 of 2025 Page 7 of 16
5. We have heard learned counsel for the parties and have carefully examined the materials available on record. The core issue that arises for consideration in the present appeal is whether the Appellant, whose appointment as Junior Stenographer was made in the year 2016 pursuant to judicial directions as a special measure, is entitled to claim retrospective notional appointment and consequential service benefits by relating such appointment back to the original recruitment year.
6. At the outset, it is not in dispute that the Appellant was never appointed pursuant to the advertisement dated 23.12.1999, nor was he selected or empanelled against the post of Assistant Sub-Inspector (Operator/Mechanic) under the said recruitment process. The Appellant's engagement as Junior Stenographer was not the outcome of any competitive selection under the relevant service rules but was ordered by this Court as a remedial measure to mitigate the hardship caused to the Appellant on account of prolonged litigation.
7. The distinction between an appointment made through a regular process of selection and an appointment made pursuant to judicial directions as a special case is well recognised in service jurisprudence. A court-directed appointment, unless expressly so directed, cannot be equated with a regular appointment so as to confer retrospective seniority, pay, or pensionary benefits. In the W.A. No.1581 of 2025 Page 8 of 16 absence of any specific direction granting such retrospective benefits, the Appellant cannot, as a matter of right, seek to rewrite the terms of his appointment.
8. The reliance placed by learned counsel for the Appellant on the decision of the Supreme Court in Nirmal Chandra Sinha v. Union of India, (2008) 14 SCC 29, requires careful consideration. The said judgment reiterates the settled principles governing the grant of service benefits and the circumstances in which retrospective operation may or may not be permissible. Relevant portion is extracted below:
"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others vs. K.K. Vadera and others 1989 Supp (2) SCC 625, State of Uttaranchal and another vs. Dinesh Kumar Sharma 2007 (1) SCC 683, K. V. Subba Rao vs. Government of Andhra Pradesh 1988(2) SCC 201, Sanjay K. Sinha & others vs. State of Bihar and others 2004 (10) SCC 734 etc.
8. Learned counsel for appellant Nirmal Chandra Sinha, however, relied on a decision of this Court in Union of India vs. B.S. Agarwal and another 1997 (8) SCC 89. We have carefully perused the decision and we are of the opinion that the said decision is distinguishable. In that case the facts were that, under the relevant rule for promotion as General Manager it was necessary to have at least two years' tenure on the lower post. The respondent did not actually have two years' tenure, yet this Court held that he was eligible W.A. No.1581 of 2025 Page 9 of 16 for promotion since he had been empanelled and the vacancy on which he should be promoted had occurred before two years of his consideration for promotion.
9. In our opinion, the aforesaid decision in Union of India vs. B.S. Agarwal (supra) was given on the special circumstances of that case and on humanitarian considerations, but it cannot be said to be a precedent for other cases. When the rule requires two years' actual service in the lower post before a person can be considered for promotion as General Manager, that rule cannot be violated by considering a person who has not put in two years' service in the lower post. Moreover, in the aforesaid decision in Union of India vs. B.S. Agarwal (supra), the respondent had not actually been promoted as General Manager, but he only claimed that he was eligible to be considered for promotion as General Manager. This fact also makes the aforesaid decision distinguishable."
9. Upon a conjoint reading of the said decision, it becomes evident that the claim for retrospective notional benefits cannot be sustained in the absence of an actual appointment in accordance with law. The reliance placed by learned counsel for the Appellant on the decisions in T.R. Dhananjaya v. J. Vasudevan, and Mohd. Iqbal Khanday v. Abdul Majid Rather also does not advance the Appellant's case. The said decisions were rendered in materially different factual contexts.
10. Further reliance is required to be placed on the recent decision of the Supreme Court in Bihar State Electricity Board W.A. No.1581 of 2025 Page 10 of 16 and Others vs. Dharamdeo Das, 2024 INSC 549, wherein the Court has authoritatively delineated the limits of judicial power in granting retrospective service benefits and regularisation dehors the statutory rules governing recruitment and service conditions. The relevant paragraph is hereby reproduced below:
"22. The spirit behind elevating the right for being considered for promotion to a fundamental right is enshrined in the principle of "equality of opportunity" in relation to matters of employment and appointment to a position under the State. Once employed, the employees are entitled for being considered for promotion to the next higher post subject to their satisfying the eligibility criteria, as per the applicable rules. Failure to consider an employee for promotion even after satisfying the eligibility criteria would violate her fundamental right. However, a clear distinction has been drawn between the stage of considering an employee for being promoted to taking the next step of recognizing the said right as a vested right for promotion. That is where the line has to be drawn. Stated differently, a right to be considered for promotion being a facet of the right to equal opportunity in employment and appointment, would have to be treated as a fundamental right guaranteed under Articles 14 and 16(1) of the Constitution of India but such a right cannot translate into a vested right of the employee for being necessarily promoted to the promotional post, unless the rules expressly provide for such a situation.W.A. No.1581 of 2025 Page 11 of 16
23. The view that seniority can neither be reckoned from the date when a vacancy arises, nor can it be granted retrospectively unless the service rules specifically provide for such a situation, is fortified by the decision of this Court in K.K. Vadera1 (supra) which has emphasised in no uncertain terms the settled position in law that promotion to a post should only be granted from the date of the promotion and not from the date on which a vacancy may have arisen. In Ganga Vishan Gujarati vs State of Rajasthan2, this Court had reiterated the principle that retrospective seniority cannot be granted to an employee from the date when she was not even borne on the cadre. This principle has been built upon by a line of precedents starting with the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra3, followed in Akhouri Sachindra Nath (supra), Dinesh Kumar Sharma4 (supra) and several other cases.
24. In Pawan Pratap Singh vs. Reevan Singh5 , this Court had taken note of the earlier decision in Pravat Kiran Mohanty6 (supra) and summarised the position in the following words :
45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre.
Seniority amongst members of the same grade has to be counted from the date of initial entry 1 (2007) 1 SCC 683 2 (2019) 16 SCC 28 3 (1990) 2 SCC 715 4 (2004) 10 SCC 734 5 (2011) 3 SCC 267 6 (2022) 12 SCC 579 W.A. No.1581 of 2025 Page 12 of 16 into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra7. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath8 and State of Uttaranchal v. Dinesh Kumar Sharma9. In Pawan Pratap Singh v. Reevan Singh10, this Court revisited the precedents on the subject and observed :
'45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules.
The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution 7 Ibid 2 8 (2007) 1 SCC 683 9 Ibid 4 10 Ibid 3 W.A. No.1581 of 2025 Page 13 of 16
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.' This view has been re-
affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao11."
11. Tested on the touchstone of the aforesaid principles, this Court finds that the Appellant's claim for retrospective notional appointment and consequential service benefits is unsustainable. It is an admitted position that the Appellant was never appointed pursuant to the original recruitment process nor against the post for which the advertisement was issued. His eventual appointment as Junior Stenographer was made much later and solely as a special measure in compliance with the directions issued by this Court, without any adjudication conferring retrospective effect. In the absence of any specific judicial 11 (2013) 8 SCC 693 W.A. No.1581 of 2025 Page 14 of 16 direction granting retrospective seniority, pay fixation, or pensionary benefits, the Appellant cannot seek to relate his appointment back to the year 2003 by invoking principles of equity. Grant of such relief would amount to conferring benefits dehors the statutory framework governing recruitment and service conditions, which is impermissible in law.
12. The contention that the Appellant should be governed by the pensionary scheme applicable prior to the introduction of the New Pension Scheme is equally without merit. Pensionary benefits are regulated by the date of actual entry into service, and not by a notional or assumed date of appointment. Since the Appellant entered service only in the year 2016, the applicability of the pension scheme has to be determined accordingly.
13. As regards the grievance relating to incorrect physical measurement at the initial stage of selection, this Court is of the view that the medical examination conducted pursuant to judicial directions was undertaken several years after the original recruitment process. In the absence of contemporaneous medical evidence demonstrating that the Appellant satisfied the prescribed physical standards at the relevant point of time, no vested right for retrospective appointment can be said to have accrued.
W.A. No.1581 of 2025 Page 15 of 16
14. While this Court is not unmindful of the prolonged litigation faced by the Appellant, sympathetic considerations cannot be elevated to confer a legal entitlement which is otherwise not recognised under law. The learned Single Judge has correctly appreciated the distinction between equitable relief and enforceable legal right, and has declined the relief sought for valid and cogent reasons.
15. Upon an overall re-appreciation of the facts and the legal principles applicable, this Court finds no infirmity, illegality, or perversity in the judgment and order dated 04.08.2025 passed by the learned Single Judge in W.P.(C) No.6579 of 2021. The conclusions arrived at therein warrant no interference in exercise of intra-court appellate jurisdiction.
16. The Writ Appeal is hereby dismissed.
(Chittaranjan Dash) Judge (Dixit Krishna Shripad) Judge A.K.Pradhan/Bijay/Sarbani Signature Not Verified Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Feb-2026 12:26:53 W.A. No.1581 of 2025 Page 16 of 16