BASANTILATA NAYAK vs STATE OF ODISHA
- Court
- Odisha High Court
WA/1212/2026
ODHC010673292026
2026:OHC:216-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 1212 of 2026
CNR No. ODHC010673292026
Basantilata Nayak …. Appellant
-Versus-
State of Odisha and others Respondents
….
Advocates appeared in this case:
For Appellant : Mr. Surya Prasad Mishra,
Senior Advocate assisted by
Mr. G. N. Parida, Advocate
For Respondents : Mr. Nirmalchandra Das,
Advocate for Respondent No.3
Mr. Bhagaban Mohanty,
Advocate for Respondent No.2
Mr. Kailash Chandra Kar,
Government Advocate for
State-Respondent No.1
CORAM:
HON’ BLE THE CHIEF JUSTICE
AND
MR. JUSTICE CHITTARANJAN DASH
HON’BLE
J U D G M E N T
----------------------------------------------------------------------------------
th
Date of Hearing & Judgment: 12 October, 2026
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HARISH TANDON, CJ.
1. The instant appeal is directed against the judgment dated
th
17 August, 2026 passed in W.P.(C) No.12367 of 2010, wherein
W.A.1212 of 2026 Page 1 of 15
the writ petition filed by respondent No.3 was allowed directing
the concerned authority to ensure her seniority above the appellant
and grant a notional promotion to the post of Nursing Sister with
th
effect from 13 December, 2006.
2. The facts pleaded in the writ petition in support of the
reliefs claimed therein are required to be recapitulated to address
the issues raised in the instant appeal. Undeniably, respondent
No.3 was temporarily appointed to the post of Staff Nurse in
Acharya Harihar Regional Centre for Cancer Research &
th
Treatment Society, Cuttack vide letter of appointment dated 16
December, 1991 for a period of two months on the basis of the
recommendation of the Staff Selection Committee. The appellant
st
was also appointed in the similar fashion with effect from 1
October, 1992, and continued to discharge their duties in such
capacity beyond the initial period of the appointment tenure, and
both were absorbed on a regular basis against the vacant posts as
rd
regular Staff Nurse with effect from 3 September, 1994.
Subsequently, the provisional gradation list of Class-III and IV,
Non-Gazetted employees of the said autonomous body, was
st th
prepared on 1 March, 1999 and notified on 5 May, 1999 inviting
W.A.1212 of 2026 Page 2 of 15
an objection if there be any within a month therefrom with clear
stipulation that in the event no objection is received, the same shall
be treated as final. It was also indicated in the said provisional
gradation list that the same would be subject to the final result of
OJC No.7469 of 1994 and OJC No.114 of 1995 filed by two
Radiologists assailing their positions in such category in the said
gradation list.
3. Admittedly, the aforesaid proceedings were subsequently
dismissed as infructuous. It appears that respondent No.3 filed an
objection when the appellant was placed above her position in the
gradation list, which was rejected by the authorities, and a final
th
gradation list was duly published on 30 December, 1999 retaining
the position of the appellant as shown in the provisional list.
Subsequently, the Staff Selection Committee of the said
th
autonomous body in a proceeding held on 11 October, 2006
prepared a promotional list to the rank of a Nursing Sister, and
ultimately, recommended the name of appellant to such
promotional post on the basis of the “ eligibility criteria ” and
performances i.e. suitability . The writ petition came to be filed
“ ”
by respondent No.3 not only challenging the promotion of the
W.A.1212 of 2026 Page 3 of 15
appellant but also the seniority list with all consequential and
financial benefits in the writ petition after the gap of nearly four
years to the said promotional list, which is disposed of by the
impugned order. The learned Single Judge allowed the said writ
petition not only interfered with the said final gradation list
prepared in the year 1999 but also directed respondent No.3 to be
th
promoted to the said post with effect from 13 December, 2006
with all consequential benefits.
4. Before we proceed on the points urged before us by the
appellant and the said respondent No.3, it would be profitable to
succinctly narrate the observations made in the impugned order.
The learned Single Judge adumbrated the fact that the said final
th
gradation list prepared on 30 December 1999, and the promotion
extended to the appellant in the year 2006 are challenged after four
years from the date of the promotion and eleven years from the
date of the said gradation list. It is further observed that respondent
no.3 received the aforesaid information under Right to Information
Act and thereafter questioned the gradation list and the promotion
of the appellant in the instant writ petition. The Single Bench
further observed that respondent No.3 has not challenged the
W.A.1212 of 2026 Page 4 of 15
initial appointment of the appellant nor challenged the order dated
rd
3 September, 1994 wherein both the appellant and respondent
no.3 were regularized in service, but only point raised in the writ
petition is whether the authorities were justified in putting the
appellant above the position of respondent No.3, and whether the
appellant could be considered for promotion to the post of Nursing
Sister on the basis of the seniority. In this regard the Single Bench
categorically observed at Paragraph-7 as follows:
“ 7. xxx xxx xxx In the case at hand, regularization is not
opposed or for that matter, it is demanded rather the
petitioner a Staff Nurse claims seniority over opposite
party No.3 and needs correction of the Gradation List and
also promotion to the higher post. In absence of any such
challenge to the initial appointment of opposite party No.3
any time after her engaged as a Staff Nurse with only an
objection submitted for correction of Gradation List
claiming seniority, this Court reiterates the view that
legality or otherwise of her appointment as a Staff Nurse
is not to be entertained.”
5. Despite having held that the initial appointment of the
appellant having not been challenged by respondent no.3, the same
being not entertainable, yet the Single Bench proceeded to
interfere with the gradation list prepared way back in the year
1999 and the promotion to the post of Nursing Sister on the
recommendation of the Staff Selection Committee.
W.A.1212 of 2026 Page 5 of 15
6. The question begging an answer in the instant appeal is as
to whether the Single Bench was justified in interfering with the
gradation list prepared way back in the year 1999 and the
promotion of the appellant through Staff Selection Committee in
the year 2006, after having found a delay of 11 years and 4 years
respectively.
7. It has been observed by the Single Bench that in absence
of any rules, bylaws and/or other statutory documents, the
seniority should be adhered to and held that once the respondent
no.3 joined the institution prior to the joining of the appellant on
temporary basis, her position should be considered on seniority
basis and not on merit. The bylaws of the institution is annexed to
the writ appeal and Chapter-III thereof which encompasses within
itself the exhaustive provision relating to creation/upgradation of
posts, appointment, probation & promotion of different categories
of the posts. Clause-19 thereof pertains to the appointing authority
and in case of Class-III & Class-IV posts, the Director on
recommendation of the Staff Selection Committee is the
appointing authority. Clause-21 thereof relates to the composition
of Staff Selection Committee, which includes the Director as one
W.A.1212 of 2026 Page 6 of 15
of the members thereof. Clause-22.8, which in our opinion
assumes importance in the instant case where it has been provided
that the appointment to all Class-III and Class-IV posts shall be
made by the Director of the Centre either by open advertisement or
by way of promotion from amongst the available eligible
employees of the Centre on the basis of the recommendation of the
Staff Selection Committee, keeping in view the prevailing rules
and regulations of the State Government of Odisha, which runs
thus:
“ 22.8 Class-III & IV Posts: Appointment to all
Class-III and Class-IV posts shall be made by the Director
of the Centre either by open advertisement or by way of
promotion from amongst the eligible employees of the
Centre. He shall appoint and promote the employees on
the basis of the recommendation of Staff Selection
Committee. The Criteria for appointment will be made by
the memebrs of the Staff Selection Committee keeping in
view the prevailing rules & regulations of State Govt. of
Orissa. The staffing pattern of the Class-III & Class-IV
cadre of the Centre shall be as per the Medical College
Cadre of the State.”
8. The cumulative effect of the aforesaid clauses in the
bylaws indicates that not only the promotion in the post of Class-
III and Class-IV shall be made on the basis of the recommendation
of the Staff Selection Committee, but also from amongst the
eligible candidates available in the feeder cadre by way of
promotion. Admittedly, the Staff Selection Committee in its
W.A.1212 of 2026 Page 7 of 15
th
meeting dated 11 October, 2006 considered the appellant as a
deserving candidate for promotion to the post of Nursing Sister on
the ground of eligibility as well as performance and, therefore,
such recommendation cannot be said to be either beyond the
purview of the bylaws or the observation of the Single Bench that
there is no rule, statutory provision or other documents concerning
the said aspect does not appear to be in tune with the same. In
view of such clauses having been incorporated in the bylaws and
the fact that the gradation list is challenged after a gap of 11 years
and the promotion after a gap of 4 years, a point is raised whether
the Single Bench was justified in entertaining the writ petition
after much delay and laches attributable to the conduct of the
respondent No.3.
9.
In Malcom Lawrence Cecil, D’Suza v. Union of India
and others , reported in (1976) 1 SCC 599, the apex Court held that
even though security of service cannot be used as a shield against
administrative action for lapse of a public servant, by and large
one of the essential requirements of contentment and efficiency in
public services is a feeling of security. Once the seniority list
having been settled, it would not be appropriate to re-open the
W.A.1212 of 2026 Page 8 of 15
same after a gap of many years at the instance of a party, who
remained quiet and did not show any promptitude in approaching
the Court.
10.
The aforesaid principle is fortified in the subsequent
judgment rendered by the apex Court in K.R. Mudgal and others
v. R.P. Singh and others , reported in (1986) 4 SCC 531 and in
B.S. Bajwa and another v. State of Punjab and others , reported
in (1998) 2 SCC 523 in the following:
“7. Having heard both sides we are satisfied that the writ
petition was wrongly entertained and allowed by the
single Judge and, therefore, the judgments of the Single
Judge and the Division Bench have both to be set aside.
The undisputed facts appearing from the record are alone
sufficient to dismiss the writ petition on the ground of
latches because the grievance made made by B.S. Bajwa
and B.D. Gupta only in 1984 which was long after they
had entered the department in 1971-72. During this entire
period of more than a decade they were all along treated
as junior to the order aforesaid persons and the rights
inter se had crystalised which ought not to have been re-
opened after the lapse of such a long period. At every
stage the others were promoted before B.S. Bajwa and
B.D.Gupta and this position was known to B.S. Bajwa and
B.D. Gupta right from the beginning as found by the
Division Bench itself. It is well settled that in service
matters the question of seniority should not be re- opened
in such situations after the lapse of a reasonable period
because that results in disturbing the settled position
which is not justifiable. There was inordinate delay in the
present case for making such a grievance. This alone was
sufficient to decline interference under Article 226 and to
reject the writ petition.”
11. Even prior thereto, in the case of P.S. Sadasivaswamy v.
State of Tamil Nadu , reported in (1975) 1 SCC 152, the writ
W.A.1212 of 2026 Page 9 of 15
petition filed by a person challenging the selection list after a gap
of several years was rejected by the apex Court in the following:
The main grievance of the appellant is that the 2nd
“2.
respondent who was junior to him as Assistant Engineer
was promoted as Divisional Engineer in 1957 by relaxing
the relevant rules regarding the length of service
necessary for promotion as Divisional Engineer and that
his claim for a similar relaxation was not considered at
that time. The learned Judge of the Madras High Court
who heard the writ petition was of the view that the
relaxation of the rules in favour of the 2nd respondent
without considering the appellant's case was arbitrary. In
view of the statement on behalf of the Government that
such relaxation was given only in the case of overseas
scholars, which statement was not controverted, it is not
possible to agree with the view of the learned Judge,. Be
that as it may, if the appellant was aggrieved by it he
should have approached the Court even in the year 1957
after the two representations made by him had failed to
produce any result. One cannot sleep over the matter and
come to the Court questioning that relaxation in the year
1971. There is the further fact that even after respondents
3 and 4 were promoted as Divisional Engineers over the
head of the appellant he did not come to the Court
questioning it. There was a third opportunity for him to
have come to the Court when respondents 2 to 4 were
again promoted as Superintending Engineers over the
head of the appellant. After fourteen long years because of
the tempting prospect of the Chief Engineership he has
come to the Court. In effect he wants to unscramble a
scrambled egg. It is very difficult for the Government to
consider whether any relaxation of the rules should have
been made in favour of the appellant in the year 1957. The
conditions that were prevalent in 1957 cannot be
reproduced now. In any case as the Government had
decided as a matter of policy, as they were entitled to do,
not to relax the rules in favour of any except overseas
scholars t will be wholly pointless to direct them to
consider the appellants' case as if nothing had happened
after 1957. Not only respondent 2 but also respondents 3
and 4 who were the appellant's juniors became Divisional
Engineers in 1957 apparently on the ground that their
merits deserved their promotion over the head of the
appellant. He did not question it. Nor did he question the
promotion of his juniors as Superintending Engineers over
his head. He could have come to the Court on every one of
W.A.1212 of 2026 Page 10 of 15
these three occasions. A person aggrieved by an order of
promoting a junior over his bead should approach the
Court at least within six months or at the most a year of
such promotion. It is not that 'here is any period of
limitation for the Courts to exercise their powers under
Article 226 nor is it that there can never be a case where
the Courts cannot interfere in a matter after the passage of
a certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercise
their extra-ordinary powers under Article 226 in the case
of persons who do not approach it expeditiously for relief
and who stand by and allow things to happen and then
approach the Court to put forward stale claims and try to
unsettle settled matters- The petitioner's petition should,
therefore have been dismissed in limine. Entertaining such
petitions is a waste of time of the court. It clogs the work
of the Court and impedes the work of the court in
considering legitimate grievances as also its normal work.
We consider that the High court was right in dismissing
the appellant's petition as well as the appeal.
”
12. It would be apt to recapitulate the subsequent decision
rendered by the apex Court in the case of Ajay Kumar Shukla and
others v. Arvind Rai and others , reported in (2022) 12 SCC 579 ,
wherein the apex Court extensively discussed the law relating to
delay in approaching the Court when the challenge is made to a
selection list prepared more than a decade before, in the following:
“ 24. We may now discuss the law on the point regarding
delay in approaching the court and in particular challenge
to a seniority list. The learned Single Judge had placed
reliance on a judgment of this Court in the case of Shiba
Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S.
Chauhan, J., after considering the question of entertaining
the petition despite long standing seniority filed at a
belated stage discussed more than a dozen cases on the
point including Constitution Bench judgments and
ultimately in paragraph 30 observed that a seniority list
which remains in existence for more than three to four
years unchallenged should not be disturbed. It is also
recorded in paragraph 30 that in case someone agitates
W.A.1212 of 2026 Page 11 of 15
the issue of seniority beyond period of three to four years
he has to explain the delay and laches in approaching the
adjudicatory forum by furnishing satisfactory explanation.
Paragraph 30 is reproduced below: -
“30. 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, 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 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.”
25. On the other hand, the Division Bench while shutting
out the appellants on the ground of delay relied upon
following judgments of this Court.
(i) Dayaram Asanand Gursahani v. State of
Maharashtra, (1984) 3 SCC 36
(ii) B.S. Bajwa and another vs. State of
Punjab and others, (1998) 2 SCC 523
(iii) Malcom Lawrence C
ecil D’Souza vs.
Union of India and others, (1976) 1 SCC 599
(iv) R.S. Makashi and others vs. I.M. Menon
and others, (1982) 1 SCC 379.
26. In the case of Dayaram Asanand Gursahani (supra),
there was a delay of 9 years. In the case of B.S. Bajwa
(supra), there was a delay of more than a decade. In
Mal com Lawrence Cecil D’Souza (supra), the delay was of
15 years and in R.S. Makashi(supra) there was a delay of
8 years. In all these cases, this court has recorded that the
delay has not been explained. Shiba Shankar Mohapatra
(Supra) is a judgment of 2010, which has laid down that,
three to four years would be a reasonable period to
challenge a seniority list and also that any challenge
(1984) 3 SCC 36 (1998) 2 SCC 523 (1976) 1 SCC 599
(1982) 1 SCC 379 beyond the aforesaid period would
require satisfactory explanation.
27. In view of the above legal proposition, we now
examine the facts of the present case, firstly, as to whether
W.A.1212 of 2026 Page 12 of 15
there was delay of more than three to four years and
secondly, if there was delay of more than three to four
years, whether the same has been satisfactorily explained.
28. In October, 2001, when the appointment letters were
issued it carried a stipulation that the seniority would be
determined later on as per rules. It is an admitted position
that before 2006, the seniority list of the appellants was
not notified. In March, 2006, when the tentative list was
published, it did not mention about the three select lists
nor was this fact mentioned when the final seniority list
was published on 05.09.2006. Rather, it clearly mentioned
that the seniority list had been prepared on the basis of
merit. This was in fact an incorrect statement. The
seniority list had not been prepared on the basis of merit
but on the basis of receipt of the three separate select lists
one after the other. As the Agricultural list was received
first on 28.09.1999, all the selected candidates of
agricultural stream were en bloc placed on the top,
thereafter the Mechanical list was received on 06.01.2000,
they were placed below the Agricultural stream and lastly,
the Civil stream list was received on 07.11.2000, they
were placed at the end.
29. Rules 5 and 8 of Rules 1991 clearly mention that there
shall be one list for one selection of direct recruits.
Creating three separate lists for one selection was
contrary to the provisions contained in Rules 5 and 8 of
Rules 1991. Rules 2009 clearly mention that seniority
would be determined and prepared as per 1991 Rules.
Rule 5 of Rules 1991, dealt with the selections made only
through direct recruitment whereas Rule 8 thereof dealt
with the situation where seniority list is to be prepared of
both the direct recruits and the promotees. However, the
principles underlined in both these Rules are the same that
there has to be one list for one selection, as is clear from
Rule 8(2)(a) and Rule 5 of Rules 1991.
30. Once it is established that the seniority list was
prepared in contravention to the statutory provisions laid
down in Rules 1991, the seniority list could be interfered
with. The Appointing Authority would be bound by the
statutory rules and any violation or disregard to the
statutory rules would vitiate the seniority list. The same
would be arbitrary, de hors the rules and in conflict with
Articles 14 and 16 of the Constitution. The only exception
to the above would be where there is unreasonable delay
which is unexplained.
”
W.A.1212 of 2026 Page 13 of 15
13. What emerged from the aforesaid judgments that once the
seniority list is finalized and a party remained quiet for a
considerable period of time in not challenging the same, it would
not be prudent for the Court to entertain the said writ petition and
unsettle the settled position understood by the parties, in exercise
of extraordinary power conferred under Article 226 of the
Constitution of India.
14. In the instant case, admittedly the provisional gradation list
was prepared in the year 1999 where the appellant was put into a
higher pedestal than the respondent No.3, and an objection was
raised by the said respondent, which was turned down and the final
gradation list was published in the month of December, 1999 and
there is no challenge to such gradation list for more than a decade
by the said respondent. Even the Single Bench noticed the
aforesaid fact and held that it should not be entertained, yet
proceeded to upset the said gradation list, which in our opinion
ought not to be as the conduct of respondent no.3 evident from the
record does not justify such interference.
W.A.1212 of 2026 Page 14 of 15
15. Apart from the same, the bylaws of the institution clearly
provides that the promotion to the post of Class-III and Class-IV
shall be made through Staff Selection Committee, and the moment
the recommendation is made on the ground of eligibility and
suitability, such administrative decision does not deserve to be
interfered with after a gap of considerable period of time.
16. We thus find that the Single Bench is not justified in
entertaining the writ petition filed by respondent no.3, which, in
our opinion, ought to have been dismissed on the ground of delay
and laches. The order impugned in the instant appeal is thus set
aside. Consequently, the writ petition filed by respondent no.3 is
dismissed.
17. The writ appeal is thus allowed. No order as to costs.
(Harish Tandon)
Chief Justice
(Chittaranjan Dash)
Judge
M. Panda/Arun Mishra
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 17-Oct-2026 18:01:44
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