W.A. No.1352 OF 2022 IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.1352 OF 2022 ***** Mahammed Sadeque …… Appellant -Versus- 1. State of Odisha, represented through its Commissioner- cum-Secretary, Department of School and Mass Education, Bhubaneswar 2. Director, Elementary Education, Odisha, Bhubaneswar 3. Block Education Officer, Jagatsinghpur .….. Respondents Advocates appeared: For Appellant : Mr. T.S. Swaraj, Advocate, On behalf of Mr. Khirod Kumar Rout, Advocate For Respondents : Mr. Siba Narayan Biswal, Additional standing Counsel CORAM : MR. JUSTICE K.R. MOHAPATRA & MR. JUSTICE SANJAY KUMAR MISHRA ---------------------------------------------------- Heard and disposed of on 06.05.2026 ---------------------------------------------------- JUDGMENT By the Bench; 1. This matter is taken up through hybrid mode. 2. This writ appeal has been preferred assailing the judgment dated 13th September, 2022 (Annexure-1) passed by this Court in RVWPET (RPC) No.137 of 2016 (arising out of O.A. No.2850(C) of 2014, disposed of on 21.10.2016). W.A. No.1352 OF 2022 3. Mr. Swaraj, learned counsel, being authorized by Mr. Rout, learned counsel for the Appellant submits that the present Appellant was appointed as a Primary School Teacher on 12.10.1974 and he continued till 14.11.1984. The Appellant remained absent from duty with effect from dated 15.11.1984 till date of his superannuation, i.e., 31.05.2011. Since the Appellant did not get his retiral as well as pensionary benefits, he preferred O.A. No.2850(C) of 2014 before the Odisha Administrative Tribunal for his retiral and pensionary benefits. The said O.A. was dismissed on dated 21.10.2016 (Annexure-3) holding that the Appellant was not entitled to any retiral or pensionary benefits. The Appellant then, filed a Review Petition {R.P. No.137(C) of 2016} before the Odisha Administrative Tribunal. The said Review Petition was allowed and disposed of vide order dated 17th May, 2017 (Annexure-5) with a finding that the Appellant was entitled for pensionary benefits as well as regularization of the period of absence. The State Government, being aggrieved, on 21.12.2017, filed an application to recall the order dated 17th May, 2017 under Annexure-5. At the same time, the Appellant also filed C.P. No.42(C) of 2018 before the Odisha Administrative Tribunal for non-compliance of order dated 17th May, 2017 (Annexure-5). When both the applications were pending, the Odisha Administrative Tribunal was abolished. Since the Appellant could not get any retiral benefits, in spite of order dated 17th May, 2017 passed in R.P. No.137(C) of 2016, he moved this Court in W.P.(C) No.12723 of 2021 for transmission of the case record in R.P. NO.137(C) of 2016 to W.A. No.1352 OF 2022 this Court. Accordingly, the case record was transmitted to this Court and registered as RVWPET(RPC) No.137 of 2016. The learned Single Judge, while taking up the petition for recall of order dated 17th May, 2017 passed in R.P. No.137(C) of 2016, decided the Review Petition afresh on merit and dismissed the same. Hence, this Writ Appeal has been preferred assailing the said order. 4. Mr. Swaraj, learned counsel further submits that R.P. No.137(C) of 2016, which was filed by the Appellant for review of order dated 21.10.2016 passed by the Odisha Administrative Tribunal in O.A. No.2850(C) of 2014, was not available to be adjudicated afresh by this Court, as it had already been disposed of vide order dated 17th May, 2017. He, also submits that RPWPET(RPC) No.137 of 2016 was taken up on 22.06.2022, when the Respondent had brought to the notice of the learned Single Judge that the CONTC (CPC) No.42 of 2018 was pending for non-compliance of order dated 17th May, 2017 passed in R.P. No.137(C) of 2016. However, without considering the said admitted facts on record, learned Single Judge passed the impugned order dated 13.09.2022, by disposing of the Review Petition afresh on merit. Mr. Swaraj submits that a patent illegality on the face of the record has been committed by the learned Single Judge, as, instead of dealing with and disposing of the recall petition filed by the State- Respondents, the learned Single Judge decided the Review Petition afresh on merit, which was not available to be adjudicated. As such, he prays for setting aside the order dated W.A. No.1352 OF 2022 13.09.2022 passed by the learned Single Judge in RPWPET(RPC) No.137 of 2016 and direct consideration of the recall petition filed by the State-Respondents on merit. It is further submitted by Mr. Swaraj, learned counsel that in the meantime CONTC (CPC) No.42 of 2018 has already been disposed of as infructuous after disposal of RPWPET(RPC) No.137 of 2016. 5. Mr. Biswal, learned Additional Standing Counsel, refuting such contention, submits that at the time of adjudication of RPWPET(RPC) No.137 of 2016, learned counsel, appearing for the Petitioner/Appellant had never raised any objection for its disposal on merit. Learned Single Judge was not appraised that application for recall of the order passed in the review petition is required to be adjudicated. However, the learned Single Judge essentially decided the petition filed by the State- Respondents to recall the order dated 17th May, 2017 passed in R.P. No.137(C) of 2016. He, therefore, submits that the learned Single Judge has committed no error in adjudicating the Review Petition on merit. 6. Heard learned counsel for the parties. Perused the case record. There is no controversy to the fact that the R.P. No.137(C) of 2016 was allowed and disposed of by the Odisha Administrative Tribunal vide order date 17th May, 2017 on merit holding that the Appellant is entitled to pensionary benefit as well as regularization of the period of his absence. The State, being aggrieved, preferred an application [M.P. No.1315 (C) of 2017] to recall the order dated 17th May, 2017, passed in the W.A. No.1352 OF 2022 Review Petition, as stated above. The case record of R.P. No.137(C) of 2016 was transmitted to this Court after abolition of Odisha Administrative Tribunal and was renumbered as RPWPET(RPC) No.137 of 2016 and M.P. No.1315 (C) of 2017 was renumbered as I.A. No.26 of 2021. At the time of final adjudication, the State had filed written notes of submission before the learned Single Judge, which indicates that they had essentially prayed to recall the order dated 17th May, 2017 passed in R.P. No.137(C) of 2016. Thus, it is not correct to allege by Mr. Biswal, learned ASC that learned Single Judge was not appraised about adjudication of the recall petition, i.e., I.A. No. 26 of 2021. 7. Further, the Review Petition, which was renumbered as RPWPET(RPC) No.137 of 2016, was no more available to be adjudicated by the learned Single Judge as it was already disposed of by the Odisha Administrative Tribunal vide order dated 17th May, 2017. Only I.A. No.26 of 2021 (M.P. No.1315 (C) of 2017) filed to recall the order dated 17th May, 2017 passed in review petition was available before learned Single Judge to be adjudicated. But, on perusal of the impugned order, it appears that the learned Single Judge has adjudicated the Review Petition afresh on merit, which has already been adjudicated by the learned Tribunal. The learned Single Judge, thereby, reversed the order passed by the learned Tribunal in R.P. No.137(C) of 2016, which was not the subject matter of adjudication before the said Court. W.A. No.1352 OF 2022 8. In view of the above, this Court finds that an error apparent on the face of the record has been committed by the learned Single Judge in adjudicating the Review Petition afresh on merit, though it was only required to adjudicate I.A. No.26 of 2021. 9. Accordingly, the impugned order dated 13.09.2022 passed by the learned Single Judge in RPWPET(RPC) No.137 of 2016 is set aside. The Registry is directed to place the matter before the assigned Bench for adjudication of I.A. No.26 of 2021 on merit giving opportunity of hearing to the parties concerned. 10. It is made clear that this Court has not expressed any opinion on the merits of the case of the parties on I.A. No.26 of 2021. 11. The Intra-Court Appeal is allowed to the extent, as aforesaid. In the facts and circumstances of the case, there shall be no order as to costs. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge (S.K. Mishra) Judge Orissa High Court, Cuttack, Dated 6th May, 2026/Kanhu Designation: JUNIOR STENOGRAPHER Location: High Court of Orissa, Cuttack.