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HIGH COURT OF ORISSA
G. K. Misra, C. J. And S. Acharya, J.
BISHNU CHARAN MOHANTY - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 168 Of 1971
Decided On : FEBRUARY 26, 1973
WRIT - LACHES AND DELAY - PROMOTION - SENIORITY - RES JUDICATA - WRIT APPLICATION DISMISSED.
Fact of the Case:
The petitioner, a lower division assistant in the office of the Chief Engineer, Roads and Buildings, Orissa, challenged the promotion of three other lower division assistants, Sarbasri G. N. Sarangi (O. P. No. 3), Sri A. C. Naik (O. P. No. 4), and Sri K. C. Patnaik (O. P. No. 5), to the posts of Grade II U. D. Assistants, alleging that he was senior to them and should have been promoted instead. The petitioner had earlier filed a writ petition (O. J. C. No. 792 of 1969) challenging the same promotions, but that petition was disposed of with a direction to the opposite parties to fix the inter se seniority of the petitioner and the three promoted assistants within three months. However, before this direction could be implemented, the Government cancelled the order promoting the three assistants and rejected the petitioner's representation for promotion. The petitioner then filed the present writ petition seeking a direction to the opposite parties to consider his case for promotion to Grade II U. D. Assistant with retrospective effect.
Finding of the Court:
The Court held that the petitioner's claim was barred by res judicata, as the issue of whether the petitioner was entitled to promotion had already been decided against him in the earlier writ petition (O. J. C. No. 792 of 1969). The Court also held that the petitioner's case was not considered for promotion at the time the three assistants were promoted, and that the promotions were made on the basis of merit and suitability. The Court further held that the petitioner's writ application was barred by laches and delay, as he had not filed his representation challenging the promotions until after a considerable delay.
Issues: 1. Whether the petitioner's claim was barred by res judicata? 2. Whether the petitioner's case was considered for promotion at the time the three assistants were promoted? 3. Whether the petitioner's writ application was barred by laches and delay?
Ratio Decidendi: 1. Res judicata: The Court held that the issue of whether the petitioner was entitled to promotion had already been decided against him in the earlier writ petition (O. J. C. No. 792 of 1969), and therefore, the petitioner was barred from raising the same issue again in the present writ petition. 2. Consideration of petitioner's case for promotion: The Court examined the relevant records and found that the petitioner's case was considered for promotion at the time the three assistants were promoted, but he was found to be less suitable than them. The promotions were made on the basis of merit and suitability, and not on the basis of seniority alone. 3. Laches and delay: The Court held that the petitioner's writ application was barred by laches and delay, as he had not filed his representation challenging the promotions until after a considerable delay. The Court noted that the petitioner had not given any satisfactory explanation for the delay, and that the delay had caused prejudice to the three promoted assistants.
Final Decision: The Court dismissed the writ petition, holding that it was barred by res judicata, that the petitioner's case was considered for promotion but found to be less suitable, and that the petition was barred by laches and delay.
G. K. MISRA, C. J.
( 1 ) IN the cadre of lower division assistants of the office of the Chief Engineer, roads and Buildings, Orissa. Sri Bishnu Charan Mohanty (Petitioner) was admittedly senior to Sarbasri G. N. Sarangi (O. P. No. 3) Sri A. C. Naik (O. P. No. 4), and Sri K. C. Patnaik (O. P. No. 5 ). Opposite parties 3, 4 and 5 were promoted to the posts of Grade II U. D. Assistants with effect from 16-8-63, 26-10-l964 and 4-1-1967 respectively to the Government (O. P. No. 1) against his supersession by opp. parties 3, 4 and 5. By letter dated 10-5-1969 (Annexure-1) the Under secretary in Works and Transport Department wrote to the Chief Engineer (Roads and Buildings) as follows:-
" with reference to your letter No. 3989 dated 7-2-1969 on the subject noted above, I am directed to say that Government have been pleased to order that Sri A. Naik (serial 12) and Sri K. C. Patnaik (serial 17) of the list furnished in your letter under reference who have already got promotion to the Grade II U. D. Assistant may be reverted to L. D. Asstt. Sri S. N. Naik (serial 9) and Sri B. C. Mohanty (Serial 10) who are senior to Sri A. Naik and Sri K. C. Patnaik may be promoted to Grade II U. D. Assistant with effect from the date from which Sri A. Naik and Sri K. C. Patnaik reverted to L. D. Assistant. The inter se seniority of those 10 assistants in the rank of U. D. Grade II assistant may be the same as in the rank of L. D. Assistants irrespective of their date of Promotion to the rank of U. D. Grade II assistants. As regards creation of extra Grade II posts you are advised to give proper facts and figures and sufficient justification for such creation separately. You are also requested to implement this order immediately without postponing it on this ground or that".
It is to be noted that Government in annexure-1 did not direct reversion of opp. party No. 3. As the Chief Engineer (O. P. No. 2) did not implement annexure-1, the petitioner and Sri Sachida-nanda Naik, another aggrieved lower division assistant filed O. J. C. No. 792 of 1969 (Sachidananda Naik and another v. Chief engineer, Roads and Buildings ). In that case this very Bench passed the following order (annexure-2) on 2nd April, 1970, substantive part of which is extracted hereunder: "in Paragraph 7 of the Counter, it is admitted on behalf of the opposite parties that the Government allowed the representation of the petitioners, but that the matter is still pending consideration of the government, and that steps are being taken to dispose it of as expeditiously as possible. It would, however, appear from annexure-F dated 10-6-1969 that the Chief Engineer, Roads and Buildings, was asked to implement that order immediately, without postponing it on this ground or that. Though this writ application was filed on 19-2-1969 there has been no compliance of the order till now. We are satisfied that the opposite parties 1 and 2 are unnecessarily delaying the matter. We accordingly allow the writ application and direct the opp. parties 1 and 2 to fix the inter se seniority of the petitioners and opp. parties 3 to 5 within three months from today. There would be no order as to costs. " this direction in annexure-2 was given on the basis of the counter filed by opposite parties 1 and 2 in O. J. C. No. 792 of 1969 which had been filed on 2810-1969. In between 28-10-1969 and 2-4-1970 when the judgment in the O. J. C. 792/69 was delivered, the Government had already rejected the representation filed by the petitioner and cancelled the order, annexure-1, as would appear from the letter annexure-A from the Government of Ori-ssa to the Chief Engineer. The material part of annexure-A dated 24th Nov. . 1969, is extracted hereunder:
"in continuation of this Department fetter No. 28629 dated 15-10-1969, i am directed to say that on further consideration of the promotion case of Sri B. C. Mohanty. L. D. Assistant, Government have been pleased to decide that the promotion given by the Chief Engineer wa
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