Orissa High Court
State Of Odisha And Others vs Kamala Panda on 24 April, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1790 of 2024
State of Odisha and others .... Appellants
-Versus-
Kamala Panda .... Respondent
Advocates appeared in this case:
For Appellants : Mr. Bimbisar Dash
Additional Government Advocate
For Respondent : Mr. P.C. Acharya, Advocate
CORAM:
HON' BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
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Date of hearing and judgment: 24th April, 2025
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HARISH TANDON, CJ.
1. This appeal is at the behest of the State assailing the
judgment and order of the learned single Judge dated 18th April,
2024 passed in W.P.(C) No.32104 of 2023, by which the prayer for
extending the benefit upon regularization of the service was
allowed in the following:
"6.1. In view of the same and placing reliance on
the decisions as cited supra, this Court is inclined
to quash office order dt.09.06.2023 so passed by
Opp. Party No.2 under Annexure-4. While
quashing the same, this Court direct Opp. Party
No.2 to pass an appropriate order absorbing the
deceased employee in the regular establishment
against the post in question or by creating a
supernumerary post.
However, in view of the submission of the
learned counsel for the Petitioner that petitioner
will not raise any claim to get the retiral dues as
due to the deceased employee save and except
family pension, this Court directs Opp. Party No.2
to sanction and release family pension in favour of
the Petitioner as due and admissible from the date
of her entitlement within a period of three (3)
months from the date of receipt of this order.
Arrear family pension as due and admissible be
also released within the aforesaid time period."
2. The genesis of the dispute can be traced from the fact that
the husband of the respondent was initially appointed as an
Ayurved compounder/Pharmacist on ad hoc basis on and from 8th
May, 1987 but he joined the said post on 13th May, 1987 as would
be evident from the service book prepared by the authorities.
3. Indubitably, the husband of the respondent continued to
discharge his duty from the date he joined the service but such
service was not regularized and after attaining the age of
superannuation, he was not extended the benefit of the retiral dues.
Unfortunately, the said employee died within one month after the
date of attaining the age of superannuation.
4. During the life time, the husband of the respondent
approached the authorities for regularization of service together
with other benefits including pension as admissible in the statutory
rules but the same was not attended to by the authorities which
constrained the said deceased to file a writ petition being W.P.(C)
No.660 of 2023. While disposing of the said writ petition, the
direction was passed upon the authority to take a decision on the
claim but the authorities did not find any material to regularize the
service of the husband of the respondent and proceeded to reject
the said application.
5. The order of rejection was further challenged in the writ
petition and a plea was taken by the present appellant that the
husband of the respondent was appointed against a reserved
vacancy, which was never filled up by taking a due selection
process till he attained the age of superannuation. It was thus
submitted that such ad hoc appointee is not entitled to get his
services regularized and, therefore, there is no infirmity and/or
illegality in the order of the authority in rejecting the prayer of the
respondent.
6. On the backdrop of the aforesaid undisputed facts, the
learned single Judge proceeded to decide the claim of the
respondent and took into account the judgment of the Supreme
Court rendered in case of The State of Gujarat & Others v.
Talsibhai Dhanjibhai Patel reported in (2022) Live Law (SC) 187,
Amarkanta Rai v. State of Bihar and Others reported in 2015
SCC Online SC 214 wherein it is held that the employee who
might have been appointed on ad hoc basis but rendered the
services for a pretty long time without any intervention of the
Court should not be treated indifferently but as a model employer,
the State being a welfare State must take a pragmatic view.
7. Even in case of Secretary, State of Karnataka v. Umadevi
(3) and others reported in (2006) 4 SCC 1, the Constitution Bench
of the Supreme Court in unequivocal term held that the welfare
State must take an initiative of formulating a one-time measure to
regularize the irregular appointees, who have worked more than 10
years from the date of the said judgment without any interim order
passed by the Court and the benefit should also be extended. The
judgment of the apex Court was taken into consideration in a
subsequent judgment rendered in Talsibhai Dhanjibhai Patel
(supra), wherein it is held that even if the ad hoc appointee is
entitled to the benefits, if he has rendered services for a
considerable period of time and as a welfare State, the benefit of
the pension cannot be denied.
8. In Amarkanta Rai (supra), the apex Court upon taking all
the relevant factors held that once the State has allowed the ad hoc
appointee to render services for a considerable period of time
without any break or discontinuance, the injustice would be
perpetrated upon such ad hoc appointees, if their services are not
regularized.
9. The law as enunciated hereinabove leaves no ambiguity in
our mind that the husband of the respondent, though appointed on
an ad hoc basis on a reserved post but till he attained the age of
superannuation, was allowed to render services as there was no
attempt made by the State to make a regular appointment to the
said post. The technicalities should not over-shadow the substantial
justice. The moment the technicality is pitted against the
substantial justice, the later must prevail.
10. Precisely taking into account the aforesaid proposition of
law laid down in the above noted reports, the learned single Judge
directed the regularization of the service of the deceased-employee
and extend the benefit of the family pension to the respondent
herein. However, a plea is taken by the respondent that though the
substantial relief has already been granted to the respondent but the
learned single Judge did not indicate the date from which the same
shall be deemed to have been regularized. Though the respondent
has not taken out any cross-objection nor has approached the
learned single Judge for a clarification and modification yet, taking
into an account the peculiar facts and to render the complete justice
to the litigant, we do not find any impediment in acceding to such
prayer as the duration of a qualifying service is a determinant
factor for quantifying the family pension to the wife of the
deceased employee.
11. In view of the law as above, we do not find there is any
infirmity in the ultimate decision taken by the learned single Judge.
Although, the substantial reliefs have been given in the writ
petition but, effective relief to the effect that the deceased-husband
of the respondent shall be deemed to be in service at the
substantive post from the date of his joining and such period of
service shall be considered as a regular appointee on the said post
entitled to all the benefits attributable to the said post at the time of
the superannuation, are not expressly granted by the Single Bench.
12. The respondent, however, fairly concedes before the Court
that she now abandoned, acquiesced and/or waived her right to get
the retiral benefit of the husband admissible on the date of the
superannuation and restrict her claim to a family pension.
13. In view of such categorical stand having taken before us,
the judgment and order is modified to the extent that for the
purpose of computation of the qualifying period of service the
same shall reckon from 13th May, 1987 and since the deceased-
employee demit the office on 31st January, 2023, such period
would be taken into account for the purpose of ascertaining the
quantum of the family pension.
14. Except to the extent is above, the appeal is disposed of and
connected applications, if any, are also disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
S. Behera
A. Nanda
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack
Date: 25-Apr-2025 12:17:08
