Jitendra Kumar Mishra Vs. State of Orissa - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it is well settled in law that in the guise of exercise of inherent power, revisional power which is otherwise not available to be exercised, should not be exercised. giving better particulars to justify his entitlement, at the appropriate stage of the proceeding, learned s. may do well to dispose of the same in accordance with law.orderc.r. dash, j.1. it is submitted by learned counsel for the petitioner that the defects pointed out have already been removed.2. learned counsel for the petitioner prays to take up the case for admission. mr. mishra, learned addl. government has no objection. the matter is, therefore, taken up for admission and final disposal.3. order dated 18.8.2009 passed by the learned s.d.j.m., bolangir on a petition under section 205 cr.p.c. filed by the present petitioner is impugned in this revision.4. it has been held by this court in the case of k. nageswar senapati v. k.c. panda and ors. 79(1995) clt 25 that an order passed under section 205 cr.p.c. is an interlocutory order and is not revisable. in view of such fact the present revision is not maintainable. learned counsel for the petitioner submits that without attaching importance to the nomenclature of the petition to be one under section 401 cr.p.c, the order impugned can be revised under section 482 cr.p.c. or he may be given liberty to convert the revision to crlmc under section 482 cr.p.c. it is well settled in law that in the guise of exercise of inherent power, revisional power which is otherwise not available to be exercised, should not be exercised. in view of such position no liberty as sought for can be granted to the petitioner. this court in the case of surojit sen and sanjaya singh v. sanatan behera 1999(ll) olr 361 has ruled that even if a petition under section 205 cr.p.c. has been rejected on earlier stage, such power can be exercised at a subsequent stage by invoking the principles recognized in sections 273 and 317 cr.p.c.5. in view of such position of law while dismissing this revision as not maintainable, it is observed that if the petitioner files a petition under section 205 cr.p.c. giving better particulars to justify his entitlement, at the appropriate stage of the proceeding, learned s.d.j.m. may do well to dispose of the same in accordance with law.6. certified copy of this order be granted on proper application.

Judgment:
ORDER

C.R. Dash, J.

1. It is submitted by learned Counsel for the petitioner that the defects pointed out have already been removed.

2. Learned Counsel for the petitioner prays to take up the case for admission. Mr. Mishra, learned Addl. Government has no objection. The matter is, therefore, taken up for admission and final disposal.

3. Order dated 18.8.2009 passed by the learned S.D.J.M., Bolangir on a petition under Section 205 Cr.P.C. filed by the present petitioner is impugned in this Revision.

4. It has been held by this Court in the case of K. Nageswar Senapati v. K.C. Panda and Ors. 79(1995) CLT 25 that an order passed under Section 205 Cr.P.C. is an interlocutory order and is not revisable. In view of such fact the present Revision is not maintainable. Learned Counsel for the petitioner submits that without attaching importance to the nomenclature of the petition to be one under Section 401 Cr.P.C, the order impugned can be revised under Section 482 Cr.P.C. or he may be given liberty to convert the Revision to CRLMC under Section 482 Cr.P.C. It is well settled in law that in the guise of exercise of inherent power, revisional power which is otherwise not available to be exercised, should not be exercised. In view of such position no liberty as sought for can be granted to the petitioner. This Court in the case of Surojit Sen and Sanjaya Singh v. Sanatan Behera 1999(ll) OLR 361 has ruled that even if a petition under Section 205 Cr.P.C. has been rejected on earlier stage, such power can be exercised at a subsequent stage by invoking the principles recognized in Sections 273 and 317 Cr.P.C.

5. In view of such position of law while dismissing this Revision as not maintainable, it is observed that if the petitioner files a petition under Section 205 Cr.P.C. giving better particulars to justify his entitlement, at the appropriate stage of the proceeding, learned S.D.J.M. may do well to dispose of the same in accordance with law.

6. Certified copy of this order be granted on proper application.