Orissa High Court

Dillip Kumar Mishra vs State Of Odisha & Others .... Opposite ... on 21 November, 2025

Author:
Biraja Prasanna Satapathy

Bench:
Biraja Prasanna Satapathy

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.28351 of 2021

In the matter of an application under
Article 226

&
of the Constitution of India, 1950.

..................

Dillip Kumar Mishra Petitioner
....

-versus-

State of Odisha & Others .... Opposite Parties

For Petitioner: M/s. M. Mishra, R.B. Sinha,
S.R. Sarkar, Adv.

For Opp. Parties: M/s. M.R. Mohanty, AGA
Mr. B.B.Mohanty, Adv.
(for O.P. No.5)

PRESENT:

THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY

---------------------------------------------------------------------------------
Date of Hearing: 21.11.2025 and Date of Judgment: 21.11.2025
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Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Mode.

2. Heard learned counsel appearing for the parties.

// 2 //

3. The present Writ Petition has been filed inter alia
challenging the final Gradation list so published on
06.02.2020 under Annexure-7 and with a further
prayer to direct Opp. party Nos.1 to 4 to correct the
Gradation list in terms of the Resolution issued on
29.01.1997. and place the Petitioner above Opp. Party
No.5.

4. It is the case of the Petitioner that both the
Petitioner and Opp. Party No.5 were appointed as
Group-D employees under the Rehabilitation
Assistance Scheme vide order dt.19.05.2008 and both
of them also joined on the very same date. Placing
reliance on the guideline issued by the Government in
the G.A Department in its resolution dt.29.01.1997
vide Annexure-10, and the provision contained under
Para-6 of the said resolution, learned counsel
appearing for the Petitioner contended that since both
Petitioner and Opp. party No.5 joined on the same date,
in view of the aforesaid provision, Petitioner being older
in age, he should have been placed above Opp. party
No.5 in the Gradation list of Group-D employees
published by Opp. party No.3. Para-6 of the aforesaid
resolution reads as follows:

6. If there are more than one cadres and/or isolated
posts in the same feeder grade in an office, a combined
gradation list of all the persons working in such
cadres/isolated posts shall be prepared on the basis of
their date of joining in the regular service for determining
the Zone of consideration for promotion. In case two
employees have joined the service in the same grade on
the same date, the employees, who is elder n age, would
be held senior.

Page 2 of 13

// 3 //

4.1. Learned counsel appearing for the Petitioner
contended that since Petitioner's date of birth as
recorded in the Service Book is 19.05.1977, and that of
Opp. party No.5 as 01.03.1979, in view of the aforesaid
provision, Petitioner should have been placed above
Opp. party No.5 in the provisional Gradation list of
Group-D employees published by the Office of the
C.D.V.O on 05.10.2018 under Annexure-6.

4.2. It is contended that because of such wrong
placement of the Petitioner vis-à-vis Opp. party No.5 in
the provisional Gradation list published under
Anenxure-6, which was made final vide Annexure-7,
Petitioner was not held eligible and entitled to get the
benefit of appointment as against the vacant post of
Live Stock Inspector by Opp. Party No.3, whereas Opp.
Party No.5 was found eligible to get the benefit. It is
accordingly contended that since on the face of the
provisions contained under para-6 of the resolution
issued under Annexure-10, Petitioner has been wrongly
placed below Opp. party No.5 in the Gradation list of
Group-D employees working under Opp. Party No.3
and accordingly Petitioner has been deprived to get the
benefit of appointment on promotion to the post of Live
Stock Inspector, the said action of the Opp. Parties is
liable to be declared as illegal, with extension of the
benefit in favour of the Petitioner as prayed for.

Page 3 of 13

// 4 //

5. Learned Addl. Govt. Advocate on the other hand
made his submission basing on the stand taken in the
counter affidavit so filed by Opp. party Nos.2 & 3.

5.1. It is contended that after their appointment in the
year 2008, in the final Gradation list of Group-D
employees so published by Opp. Party No.3 on
27.12.2012 as well as 31.12.2014 under Annexure-A/3
and B/3, Petitioner was placed below Opp. party No.5
and at no point of time, Petitioner raised any objection
to such placement of him below Opp. party No.5. It is
contended that in the Gradation list published under
Annexure-A/3, Petitioner while was placed at Sl. No.58,
private Opp. party No.5 placed at Sl. No.57. Similarly,
in the Gradation list published on 31.12.2014 under
Annexure-B/3, Petitioner was placed at Sl. No.22 and
Opp. party No.5 at Sl. No.21.

5.2. Learned Addl. Govt. Advocate accordingly
contended that since in the final Gradation list
published under Annexure-A/3 and B/3 in the year
2012 & 2014, Petitioner was placed below Opp. party
No.5 and at no point of time Petitioner raised any
objection to such placement of him in the gradation
list, Petitioner is not eligible and entitled to challenge
his placement below Opp. party No.5 in the provisional
Gradation list published on 30.08.2018 under
Annexure-D/3 so finalised vide order dt.5.10.2018
under Annexure-6.

Page 4 of 13

// 5 //

5.3. It is also contended that taking into account his
position in the final Gradation list published on
05.10.2018 under Annexure-6, Petitioner participated
in the selection process for his promotion to the post of
Live Stock Inspector. Only when Petitioner failed to get
the benefit and Opp. party No.5 was held eligible to get
the same, the present Writ Petition was filed
challenging such action of Opp. party No.3.

5.4. It is contended that since at no point of time,
Petitioner raised any objection to his placement in the
final Gradation list published in the year 2012, 2014 as
well the provisional gradation list published on
30.08.2018 under Annexure-D/3 and he participated
in the selection process, to get the benefit of promotion
to the rank of Live Stock Inspector, Petitioner is not
permitted to challenge his placement below Opp. Party
No.5, by filing the present Writ Petition in the year
2021. It is accordingly contended that the ground on
which the Writ Petition has been filed assailing the
action of Opp. party No.3 is not acceptable. A further
submission was also made that, after publication of
Provisional Gradation list on 30.08.2018 under
Annexure-D/3, no objection was ever filed by the
Petitioner to his placement and in absence of any such
objection, the provisional gradation list was finalised
vide order dt.05.10.2018 under Annexure-6.

Page 5 of 13

// 6 //

6. Similar submission was also made by Mr. B.B.
Mohanty, learned counsel appearing on behalf of Opp.
party No.5. It is contended that since at no point of
time after their appointment, Petitioner raised any
objection to his placement below Opp. Party No.5 in
successive Gradation lists of Group-D employees
published in the year 2012, 2014 and Gradation list
published on 31.01.2015 under Annexure-A/5 series
and no objection was also filed to the provisional
Gradation list published on 30.08.2018 under
Annexure-D/3, Petitioner is not eligible and entitled to
challenge such placement vis-à-vis Opp. party No.5 by
filing the present Writ Petition in the year 2021. It is
accordingly contended that the relief as claimed by the
Petitioner challenging the action of Opp. party No.3 and
the benefit extended in favour of Opp. party No.5
cannot be entertained.

6.1. In support of his submission, Mr. B.B. Mohanty,
learned counsel appearing on behalf of opp. Party No.5
relied on a decision of the Hon'ble Apex Court in the
case
Shiba Shankar Mohapatra and Others Vs.
State of Orissa & Others
. Hon'ble Apex Court in
para-29 of
the said decision
has held as follows:

29. Thus, in view of the above, the settled legal
proposition that emerges is that once the seniority had
been fixed and it remains in existence for a reasonable
period, any challenge to the same should not be
entertained. In K.R. Mudgal (supra), this Court has laid
down in crystal clear words that a seniority list which
remains in existence for 3 to 4 years unchallenged,
should not be disturbed. Thus, 3-4 years is a reasonable
period for challenging the seniority and in case someone

Page 6 of 13

// 7 //

agitates the issue of seniority beyond this period, he has
to explain the delay and laches in approaching the
adjudicatory forum, by furnishing satisfactory
explanation.

7. To the stand taken in the counter affidavit, Mr. M.
Mishra, learned counsel appearing for the Petitioner
made further submission basing on the stand taken in
the rejoinder affidavit so filed by him.

7.1. It is contended that since at no point of time,
Petitioner was intimated about his placement vis-à-vis
Opp. party No.5 in the final gradation list published in
the year 2012,2014, 2015 as well as the provisional
gradation list published on 30.08.2018 under
Annexure-D/3. Petitioner had no occasion to challenge
such placement by filing his objection.

7.2. It is also contended that provisional gradation list
published on 30.08.2018 under Annexure-D/3 since
was not brought to the knowledge of the Petitioner, he
could not file any objection and taking into account his
position in the final gradation list published on
05.10.2018 under Annexure-6, he participated in the
selection process to get the benefit of appointment on
promotion to the rank of Live Stock Inspector. Only
when the select list was published by placing Opp.
party No.5 above the Petitioner vide order
dt.06.02.2020 under Annexure-7, Petitioner could
know that he has been discriminated vis-a-vis Opp.
Party No.5 and his position has not been maintained in
terms of resolution dt.29.01.1997 under Annexure-10.

Page 7 of 13

// 8 //

8. Mr. M. Mishra, learned counsel appearing for the
Petitioner in support of his submission relied on the
following decisions:

1.
State of Odisha & Another Vs.
Bichitrananda Mohapatra & Another,2021
(1) OLR
2.
State Of Orissa and Another Vs. Sri Dwarika
Das Agarwalla
, 2017(I) CLR 313

3. Krushna Chandra Sahoo Vs. Bank of India
& Others, AIR 2009 Orissa 35

8.1. This Court in the case of Bichitrananda
Mohapatra in Paragraphs-10,11,12,13 & 14 has held
as follows:

10. Chesta Holdings Ltd. v. Kartin (1959) 3 All
ER 666 Notice word which Involves that knowledge
may be imparted by had to the word "notids is not
synonym for the word knowledge police Knowledge is
not a condition of mind.

"Knowledge" is the act of state of knowing, clear
perception of fact, that which is or may be known it
means acquaintance with things ascertained or
ascertainable) specific information

11. In Jai Prakash v. State, JT 1991 (1) SC 228, it
has been held that knowledge signifies a state of
mental realization with bare state of Conscious
awareness of certain facts in which human mind
remains supine er inactive

12. In Arun Navalji More v. State of Maharashtra,
(2006) 12 SCC 613, it has been held that the
standard test of 'knowledge' is whether the person
whose conduct is in issue either knows of the

Page 8 of 13

// 9 //

relevant circumstances or has no substantial doubt
of their existence.

13. In Mahadev Prasad v. Mansa Ram, AIR 2008
Raj 206, while considering the second proviso of
Order-IX, Rule13, the Court held that the word
'knowledge' occurring in second proviso of Order-IX,
Rule-13 of the Code means the knowledge of date of
hearing and not of 'pendency of suit'.

14. In view of the principles of law, as discussed
above, and applying the same to the present fact, it
is made clear that the order which was passed on
16.10.2019 was never brought to the notice of the
respondent no. 1-petitioner and, therefore, there was
no occasion on his part to file an application within
thirty days period granted for recalling or
modification or clarification of the order. When he
received the certified copy on 05.02.2020. he moved
the present application for recalling the order dated
16.10.2019 passed by this Court. Thus, the
objection raised by Mr. D.K. Mohanty. learned Addl.

Standing Counsel appearing for the State appellant-
opposite parties, that since the petitioner has filed
the application beyond thirty days period the same
cannot be entertained, has no justification,
particularly when the respondent no.1-petitioner
had not appeared in the case nor had he the
occasion to know whether such order has been
passed by This Court nor the said order been
communicated to him so as to file the application
within thirty days period prescribed by this Court.

8.2. This Court in the case of Sri Dwarika Das
Agarwalla in Paragraph-18 has held as follows:

18. Before parting with the case, this Court observes
that for a paltry amount, the plaintiff is running from
pillar to post since 1975. He had approached this
Court twice earlier Had the matter been examined
with due care and circumspection, then valuable
Court time could have been saved. No litigant has a
right to unlimited drought on the Court time and
public money in order to get his affairs settled in the
manner as he wishes. State is a virtuous litigant
About 60 years back in the case of
Firm Kaluram
Sitaram v. The Dominion of India
. AIR 1954
BOMBAY 50, Chief Justice Chagla (as he then was)

Page 9 of 13

// 10 //

speaking for the Bench stressed that when the State
deals with a citizen it should not ordinarily rely on
technicalities, and if the State is satisfied that the
case of the citizen is a just one even though legal
defences may be open to it, it must act, as has been
said by eminent judges, as an honest person The
claim of the plaintiff was denuded on jejune grounds

8.3. The Apex Court in the case of Krushna Chandra
Sahoo in Paragraph-10 has held as follows:

10. When the statute provides for a particular
procedure, the authority has to follow the same and
cannot be permitted to act in contravention of the
same. It has been hither to uncontroverted legal
position that where a statute requires to do a certain
thin in a certain way, the thing must be done in that
way or not at all. Other methods or mode of
performance are impliedly and necessarily forbidden.

The aforesaid settled legal Proposition is based on a
legal maxim "Expressio unius est exclusion alterius".
Meaning thereby that if a statute provides for a thig to
be done in a particular, then it has to be done in that
manner and in no other manner and following other
course is not permissible,
Vide State of Bihar v. J.A.C
Saldanna
, AIR 1980 SC 3276;
Haresh Dayaram
Thakur V. State of Maharashtra & Others.
, (2000) 6
SCC 179: AIR 2000 SC 2281;
Prabha Shankar Dubey
v. State of Madhya Pradesh
,
AIR 2004 SC 486, and
Indian Banks' Association v. Devkala Consultancy
Service
, AIR 2004 SC 2615.

9. Having heard learned counsel appearing for the
parties and considering the submission made, this
Court finds that Petitioner and Opp. party No.5, both
were appointed under the provisions of Rehabilitation
Assistance Scheme as Group-D employee vide order
dt.19.05.2008 and both of them joined in the
establishment of Opp. Party No.3 on 19.05.2008. It is
found that subsequent to their joining as Group-D
employees in the establishment of Opp. party No.3, in

Page 10 of 13

// 11 //

the final Gradation List of Group-D employee published
in the year 2012 under Annexure-A/2, in the year
2014, under Annexure-B/3 and in the year 2015
under Annexure-A/5 series, Petitioner all through was
placed below Opp. party No.5.

9.1. Even in the provisional Gradation list published
on 30.08.2018 under Annexure-D/3, Petitioner was
placed below Opp. party No.5, and no objection was
ever made by the Petitioner to such placement of
Petitioner vis-à-vis Opp. party No.5. It is also found
that basing on the final Gradation list published on
05.10.2018 under Annexure-6, Petitioner participated
in the selection process to get the benefit of promotion
to the post of Live Stock Inspector. Only when
Petitioner came to know that because of his placement
below Opp. Party No.5, Opp. Party No.5 has been held
eligible to get the benefit of promotion vide order
dt.06.02.2020 under Annexure-7, the present Writ
Petition was filed challenging such action of Opp. Party
No.3.

9.2. Since after their appointment and joining on
19.05.2008, Petitioner never raised any objection
regarding his placement below Opp. party No.5 in the
final Gradation list published in the year 2012,2014
and 2015 as well as in the provisional Gradation list
issued on 30.08.2018 under Annexure-D/3 as well as
the final gradation list published on 05.10.2018 under

Page 11 of 13

// 12 //

Annexure-6, it is the view of this Court that Petitioner
has forgone his right to be placed above Opp. party
No.5.

9.3. Even though in terms of the resolution issued on
29.01.1997, Petitioner is required to be placed above
Opp. Party No.5, but since for a pretty long period
starting from 2012 till 2018, Petitioner never raised
such a claim to be placed above Opp. party No.5, It is
the view of the Court that Petitioner is not permitted to
challenge the same. Not only that without raising any
objection to his placement in the final gradation list
published on 05.10.2018 under Annexure-6, Petitioner
took his chance and participated in the process of
selection to get the benefit of promotion to the rank of
Live Stock Inspector. Only when vide order
dt.06.02.2020 under Annexure-7, Opp. Party No.5
taking into account his seniority over the Petitioner was
placed ahead of the Petitioner, the present Writ Petition
was filed.

9.4. Placing reliance on the decision in the case of
Shiba Shankar Mohapatra, this Court is of the view
that Petitioner is not eligible and entitled to get the
benefit of seniority over Opp. Party No.5 as prayed for.
The decisions relied on by the learned counsel
appearing for the Petitioner as per the considered view
of this Court are not applicable to the facts of the
present case.

Page 12 of 13

// 13 //

9.5. In view of the aforesaid analysis, this Court is not
inclined to interfere with the challenge made in the
Writ Petition dismiss the Writ Petition.

9.6. The Writ Petition stands dismissed.

(Biraja Prasanna Satapathy)
Judge

Orissa High Court, Cuttack
Dated the 21st November, 2025 /Sangita

Signature Not Verified

Digitally Signed

Signed by: SANGITA PATRA

Reason: authenticaton of order
Location: high court of orissa, cuttack
Date: 25-Nov-2025 14:03:37

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