Orissa High Court
State Of Odisha & Ors vs Krushna Chandra Mallick & Anr on 15 July, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. NO.17 OF 2023,
W.A. NO.551 OF 2023,
W.A. NO.771 OF 2023,
W.A. NO.1232 OF 2023,
W.A. NO.1292 OF 2023,
W.A. NO.1835 OF 2023,
W.A. NO.373 OF 2024
&
W.A. NO.2473 OF 2024
W.A. No.17 of 2023
Arising out of order dated 28.02.2022 passed by a learned Single Judge
of this Court in WPC (OAC) No. 2730 of 2017.
State of Odisha & Ors. .... Appellants
-Versus-
Krushna Chandra Mallick & Anr. .... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondents : M/s. Prafulla Kumar Mohapatra & S.C. Sahoo,
Advocates
W.A. No.551 of 2023
Arising out of order dated 22.09.2022 passed by a learned Single Judge
of this Court in WPC (OAC) No. 2843 of 2018.
State of Odisha & Ors. .... Appellants
-Versus-
Sidheswar Pal .... Respondent
Page 1 of 17
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondent : M/s. Biswaranjan Das & A.P. Ray, Advocates
W.A. No.771 of 2023
Arising out of order dated 03.03.2022 passed by a learned Single Judge
of this Court in WPC (OAC) No. 1410 of 2017.
State of Odisha & Ors. .... Appellants
-Versus-
Alekh Charan Sahoo & Ors. .... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondents : None
W.A. No. 1232 of 2023
Arising out of order dated 17.02.2022 passed by a learned Single Judge
of this Court in WPC (OAC) No. 1522 of 2012.
State of Odisha & Ors. .... Appellants
-Versus-
Duryodhan Sahoo .... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
Page 2 of 17
For Respondent : None
W.A. No. 1292 of 2023
Arising out of order dated 13.02.2023 passed by a learned Single Judge
of this Court in WP(C) No. 3748 of 2023.
State of Odisha & Ors. .... Appellants
-Versus-
Prahallad Pujahari .... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondent : None
W.A. No. 1835 of 2023
Arising out of order dated 24.11.2022 passed by a learned Single Judge
of this Court in WP(C) No. 30089 of 2022.
State of Odisha & Ors. .... Appellants
-Versus-
Ananta Kumar Das & Anr. .... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondents : None
W.A. No. 373 of 2024
Arising out of order dated 11.08.2022 passed by a learned Single Judge
of this Court in WP(C) No. 35734 of 2021.
State of Odisha & Ors. .... Appellants
Page 3 of 17
-Versus-
Sridhar Prasad Das & Ors. .... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondents : None
W.A. No. 2473 of 2024
Arising out of order dated 21.09.2021 passed by a learned Single Judge
of this Court in WP(C) No. 29103 of 2021.
State of Odisha & Ors. .... Appellants
-Versus-
Krushna Takri .... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate Geneal
with M/s. Satyabrata Mohanty & Debaraj Mohanty,
Addl. Govt. Advocates
For Respondent : None
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
--------------------------------------------------------------------------------------
Date of hearing : 07.07.2025 : Date of judgment : 15.07.2025
--------------------------------------------------------------------------------------
PER DIXIT KRISHNA SHRIPAD, J.
All these intra-court appeals by the State and its
functionaries seek to call in question the orders rendered by learned
Single Judges of this Court in the subject writ petitions whereby a Writ
of Mandamus has been issued to the appellants herein to extend all the
benefits in favour of respondent-employees in terms of the direction in
WP(C) No. 14244 of 2006 (State of Odisha v. Nityananda Biswal)
disposed of on 07.04.2014. In that case, a direction was issued to count
entire pre-regularization service for the purpose of pension.
2. These cases have a checkered history. Its brief narration
will not be out of place:
(i) The public service in the State of Odisha comprises of
regular employees, work-charged employees, job contractors & the like.
These appeals relate to the class of job contractors. The services of most
of these employees, we are told at the Bar, are regularized, in a phased
manner by and large on a normative basis. The Settlement Class-IV Job
Contract Employees Union had filed OJC No. 2147 of 1991, which was
decided on 24.03.1991, inter alia, holding that denial of pension to these
employees amounted to unfair practice violative of Article 14 of the
Constitution of India. In the said case of the Union, a Coordinate
Bench of this Court had said ".... This part, for the purpose of
calculating the pensionary benefit, so much of their earlier service
period shall be reckoned, even if there had been breaks in their
employment, so as to make them eligible for pension. The necessity of
giving this direction has been felt because, if service rendered after
regularization alone shall be counted for pensionary benefit, most of the
present incumbents would be denied the same, because to earn pension,
ten years minimum service is necessary, which most of the incumbents
at hand would not put in after regularization as they would retire before
completing this period having been appointed two decades back."
(ii) For the implementation of this order, the State Government
issued an Office Memorandum dated 12.12.1997 to the effect that the
date of regularization shall be reckoned for computing a ten-year
qualifying service for pension, subject to the condition that so much of
pre-regularization service as would satisfy the shortfall of the said
qualifying service, would be counted. This condition was laudably
stipulated inasmuch as any job contract employee who has put in a
minimum pre-regularization service of ten years should also be
benefited. However, this beneficial condition was not extended to the
claim for gratuity.
(iii) Presumably because of fiscal implications of the
Coordinate Bench judgment fallowed by 1997 Office Memorandum, a
provision, namely, Sub-Rule (6) came to be introduced to Rule 18 of
the Orissa Pension Rules, 1992 to lend statutory credence to the said
OM. We shall be discussing Rule position of the matter a bit later.
Misconstruing these rules, the Orissa Administrative Tribunal in T.A.
No. 11/1993 between Bhgban Pattanayak v. State of Orissa held that
the entire pre-regularization service of job contract employees should
be counted for the purpose of pension. This was reiterated in O.A.
No.3020(C)/2003 between Nityanand Biswal v. State of Odisha
decided on 25.03.2011. We are told that State‟s challenge to the same
before another Coordinate Bench ended in vain, even at the level of
Apex Court.
(iv) Strangely, in All Orissa Settlement and Land
Consolidation Non-Gazetted Technical Officers‟ Association v. State of
Odisha OA No.3665 (C) of 2001 decided on 25.03.2011, the very same
Tribunal having construed Sub-Rule(6) of Rule 18 agreed with the
State‟s contention and held that the job contract employees could not
claim to count their entire pre-regularization service for the purpose of
pension. Another Coordinate Bench of this Court in State of Orissa v.
Nityananda Dash in W.P.(C) No.11503 of 2008 upheld similar
contention of the State and thereby dismissed the claim of employees
with the observation that the State Government should consider if any
further concession can be made to the employees. The Government
having considered this aspect, vide order dated 02.07.2022, stuck to its
position, may be because of enormous financial implications.
(v) In OA No.2730(C) of 2017, the State Administrative
Tribunal was moved by one of the respondent-employees, namely, Sri
Krushna Chandra Mallick seeking a direction to the State to extend to
him similar benefits of pension, as has been directed in OA No.3020(C)
of 2003, i.e., Nityananda Biswal‟s case. Other respondent-employees
had also moved Original Applications on the similar line. On the
abolition of the Tribunal, these cases stood transferred to this Court and
various Single Judge Benches, having allowed the same, directed the
State Government to count the entire service rendered by the job
contract employees for the purpose of pension. State‟s intra-court
appeals against the same came to be negatived by the Coordinate
Benches. Matters were caried further to the Apex Court in State v.
Sudhansu Sekhar Jena, etc. [SLP(C) No.2176 of 2024] which having
considered the same made a common order dated 21.02.2005 allowing
the subject SLPs and thereby setting aside the Coordinate Bench orders.
All these cases along with other have been remanded for consideration
afresh in the light of certain observations. That is how, the appeal
papers are placed at our hands.
3. Learned Advocate General's submissions on behalf of
the State:
(i) There are decisions on both the sides of the spectrum, one
set according benefit of entire pre-regularization service and the other
restricting the benefit only to the qualifying service; the matter having
travelled to the Apex Court, has been remanded to this Court for
consideration afresh; since both the cases of spectra have been duly
examined by the Apex Court and only thereafter remand is made, these
appeals need to be adjudged on their intrinsic merits uninfluenced by
the conflicting decisions of Coordinate Benches and of the State
Administrative Tribunal, as it then was.
(ii) The right of job contract employees‟ postretirement to the
terminal benefits is regulated by the 1992 Rules in general and Rule
18(6) in particular and there being no challenge to these, no benefit
larger than what has been envisaged under the Scheme of Rules can be
granted to the employees. These Rules having been promulgated inter
alia under the proviso to Article 309 of the Constitution, not only have
statutory force but enjoy presumptive validity. The impugned orders of
the learned Single Judges run counter to these Rules and therefore are
unsustainable.
(iii) The impugned orders of the learned Single Judges have far
reaching implications on the Public Exchequer; regulation of conditions
of pension to the employees is a matter of policy and therefore the
policy considerations should animate the Court judgments, and nothing
else. Courts cannot rewrite State Policies, more particularly when
budgetary aspects are involved in the matter and that the State Policies
are evolved, a host of factors entering the fray.
4. Submissions made on behalf of the employees:
(i) The impugned orders have been structured by the learned
Single Judges after taking into consideration all aspects of the matter
and therefore there is no justification for indulgence in the subject
appeals.
(ii) Orders in question are consistent with at least a set of
judgments of this Court which directed reckoning of even pre-
regularization service of job contract employees; other set of
judgments, having come at a later point of time and being in variance
with the earlier ones, lack precedential value and therefore they are
liable to be ignored.
(iii) Contention of the State, if countenanced, would bring into
existence two sets of job contract employees, inasmuch as in terms of
earlier judgments already pension has been sanctioned after counting
entire pre-regularization service and thus act of the State would be
discriminatory and violative of Article 14 of Constitution of India. All
pensioners of a cadre constitute one homogenous class and splitting
them into sub-classes is impermissible.
(iv) Pension is not a bounty, it is a valuable right of the retirees
vide D.S. Nakara v. Union of India,1; and therefore Sub-Rule(6) of
Rule 18 should be construed on par with Sub-Rule(3); in any
circumstance the said Sub-Rule(6) should be read down, even if it is not
challenged, consistent with pro-workmen Directive Principles enshrined
in Part-IV of the Constitution.
5. Having heard learned counsel for the parties and having
perused the appeal papers we are inclined to grant indulgence in the
matter as under and for the following reasons:
5.1. The first submission of learned AG that there have been
cases on both sides of the spectrum and the Apex Court having all that
has remanded the matter for consideration afresh merits acceptance.
The Apex Court in its order dated 21.02.2025 has referred to a catena of
decisions of Coordinate Benches, of learned Single Judges and of the
erstwhile State Administrative Tribunal. For the ease of reference, the
same are enlisted below:
(i) DB judgment of this Cout in OJC No.2147 of 1991
between Settlement Class-IV Job contract employees Union,
Balasore v. State of Orissa decided on 24.03.1993.
(ii) OAT judgment in T.A. No.11 of 1993 between
Bhagaban Pattnaik v. State of Orissa decided on 21.10.1994.
(iii) OAT judgment in O.A. No. 3030(C) of 2003 between
Nityanand Biswal v. State of Orissa decided on 14.01.2004.
(iv) OAT judgment in O.A. No.3665(C) of 2001 between
All Orissa Settlement and Land Consolidation Non-Gazetted
AIR 1983 SC 130
Technical Officers Association v. State of Orissa decided on
25.03.2011.
(v) DB judgement of this Court in WP(C) No.11503 of
2008 between State of Orissa v. Nityanand Das.
(vi) SB judgment of this Court in WPC(OAC) No.2276 of
2012 between Judhistir Padhy v. State of Odisha decided on
19.04.2022.
(v) SB judgment of this Court in WPC(OAC) No.3741 of
2015 between Chintamani Panda v. State of Odisha decided
on 08.08.2022.
(vi) SB judgment of this Court in WPC(OAC) No.2622 of
2015 between Pitambar Hota v. State of Odisha decided on
08.08.2022.
5.2. We also agree with learned AG‟s further submission that
the Apex Court having examined both the sets of judgments, namely,
one holding in favour of the employees and the other agreeing with the
contention of the State, has remanded the matter for fresh consideration
and therefore we should decide the matter afresh keeping at a bay the
observations in all those judgments, be they favourable to the
employees or to the State. The contention advanced on behalf of the
employees that this Court should be guided by earlier set of decisions
that upheld their case for counting entire pre-regularization service for
the purpose of pension, is liable to be rejected for the simple reason that
the Apex Court in Sudhansu Sekhar Jena supra having considered
amended Rule 18 vide Sub-Rule (3) of 1992 Rules has specifically
observed at Paragraph-6 as under:
"All the same, on 21.10.1994, the Orissa Administrative
Tribunal in Bhagaban Pattnaik v. State of Orissa (T.A.
No.11/1993), on a total misinterpretation and reading of Job
Contract Employees Union (Supra) case, held that the entire
period of Job Contract Employment should be considered for
calculation of pension. This ruling was followed by the
Tribunal when it ordered inclusion of entire period of Job
Contract Employment ordered inclusion of entire period of
Job Contract Employment in calculation of pension in
Nityanand Biswal v. State of Orissa & Ors. ... Clearly, the
Tribunal had misinterpreted the ratio of Job Contract
employees Union case. ... "
With the above observation, it is relevant to state, the Apex Court
consciously did not put the matter to rest but remanded the matter for
de novo consideration. Therefore, it is imperative for us to undertake
that exercise. We hasten to add that we have perused the decisions
referred to by the Apex Court, is beside the point.
5.3. Learned counsel for the employees are right in submitting
that in view of D.S. Nakara supra pension is not a bounty. It is a
consideration for the past service and becomes payable after employee
demits the office ordinarily on attaining the age of superannuation. It is
a provision for the evening of his life. However, when the right to
pension is regulated by law, namely, the 1992 Rules herein, Courts
have to scrupulously follow the same while adjudging inter alia the
rights of pensioners, its jural corelative resting on the shoulders of the
State. Since it is contended from the side of employees that their full
service in the work charged establishment are counted under Sub-Rule
(3) of Rule 18, the corresponding provision, namely, Sub-Rule (6)
should also be accordingly construed, we are reproducing the text of
both these Sub-Rules:
"(3) Notwithstanding anything contained in clauses (i)
and (ii) of sub-rule (2) a person who is initially
appointed by the government in a work-charged
establishment for a period of five years or more and is
subsequently appointed to the same or another post in
a temporary or substantive capacity in a pensionable
establishment without interruption of duty, the period
of service so rendered in work-charged establishment
shall qualify for pension under this rule."
Came to be loaded to Rule 18 in 2001 by way of amendment to 1992 Rules. It has
the following text:
"(6) Notwithstanding anything contained in clause(i) &
(iii) of sub-rule (2), a person who is initially appointed
in a job contract establishment, and is subsequently
brought over to the post created under
regular/pensionable establishment, so much of his job
contract service period shall be added to the period of
his qualifying service in regular establishment and
would render him eligible for pensionary benefits."
5.4. Legislations and Sub-ordinate Legislations enjoy
presumptive validity vide Shri Ram Krishna Dalmia v. Shri Justice S.
R. Tendolkar,2 although the degree of such presumption is
comparatively low in the case of latter. When no challenge is laid to the
vires of instruments of law like the sub-Rules in question, Courts
cannot ignore them on the halfhearted submission at the Bar that the
same are unjust & unreasonable. Now, let us examine what exactly sub-
Rule (6) says. It has the following building blocks: job contract
establishment; person initially appointed in such establishment;
subsequently he being brought over to the post in regular/ pensionable
establishment; qualifying service in regular establishment; eligibility
for pensionary benefits. A plain reading of the Rule shows its intention,
scope, condition & limitation. It provides for the grant of pension even
to the persons who are employed by job contract; for that he has to be
brought over to a regular establishment which is pensionable; the
pensionablity is made dependent upon his satisfying the qualifying
service, which we are told, is 10 years. While computing this qualifying
AIR 1958 SC 538
period, the services rendered by such persons before being brought over
to regular establishment shall be counted. However, this is subject to
the rider that such service shall be counted only to fill the shortfall of
ten years and not beyond.
5.5. The above can be illustrated like this. Mr. „A‟ entered job
contract on 01.04.1995; he was brought over to regular service on
01.05.2005; he retired from service on 30.06.2010. He thus has put in
ten years of service before regularization and five years of regular
service. He cannot claim that his fifteen years of service should be
counted for computing this pensionary benefits. For the purpose of
qualifying service for pension, he has apparently a regular service of
five years which is obviously short of ten years. To make this shortfall
good, the years of service he had rendered before regularization would
be reckoned. This is the purport of Sub-Rule (6). The expressions
employed in Sub-Rule(6) namely, "so much of his job contract service
period" followed by "would render him eligible for pensionary
benefits" unmistakably shows clear intent of the provision that what is
countable is the shortfall of qualifying service and not entire service,
i.e. pre-regularization service plus regular service. If the Rule Maker
intended what learned advocates for the employees have been
submitting, the text of this rule would have been much different. Courts
can interpret Rules and they cannot rewrite them.
5.6. Now, let us examine the text & context of Sub-Rule (3) of
Rule 18: This provision admittedly relates to work-charged
establishment, as distinguished from job contract. The last portion of
the said Rule, i.e., ".... the period of service so rendered in work-
charged establishment shall qualify for pension under this rule."
makes the intent of the Rule Maker as clear as Gangetic waters. It says
that the entire service in the work-charged establishment shall be
reckoned for the purpose of pension and not just for the purpose of
computing the qualifying service. The contention that Sub-Rule (6)
should be read on par with Sub-Rule (3), cannot be countenanced
without manhandling at least one of them. The work-charged
establishment and job contract are poles asunder. The terms &
conditions of service are not the same for these two classes of
employees and therefore the Rule Maker justifiably treated them
separately. Arguably equating one with the other would amount to
treating the un-equals as equal and that spurns at the ratio of E.P.
Royappa v. State of Tamil Nadu,3.
5.7. The vehement submission of learned counsel for the
employees that Sub-Rule (6) of Rule 18, though is not challenged,
should be read down to count entire pre-regularization service for the
purpose of pension, is difficult to accept. Reasons for this are not far to
seek: Firstly, this provision is not put in challenge and therefore there is
nothing to rebut its presumptive validity. There is not even a plea taken
in the writ petition of the employees warranting invocation of the
doctrine of reading down. This doctrine may be invoked and applied if
the statute is silent, ambiguous or admits more than one interpretation.
But where it is express, and clearly mandates to take certain action or to
mean certain things, the function of the Court is to interpret it plainly.
In the absence of challenge, ordinarily courts do not permit the
AIR 1974 SC 555
invocation of this doctrine to alter the policy content of a statute.
Ordinarily this doctrine is invoked to trim the contours of law which
otherwise suffers from the vice of over inclusiveness or such other
infirmity and therefore is falling foul of a higher legal norm such as the
parent Constitution, the statute, etc. It is relevant to see what the Apex
Court observed in Minerva Mills v. UOI,4:
"64. ... The device of reading down is not to be
resorted to in order to save the susceptibilities of the
law makers, nor indeed to imagine a law of one's liking
to have been passed. One must at least take the
Parliament at its word ...
65. ... If the Parliament has manifested a clear
intention to exercise an unlimited power, it is
impermissible to read down the amplitude of that
power so as to make it limited. The principle of reading
down cannot be invoked or applied in opposition to the
clear intention of the legislature The above
observations broadly"
5.8. Learned Advocate General is right in telling us that Rules of the
kind which provide for pensionary benefits to the employees are
evolved as a matter of State Policy taking into inter alia account the
purse size of the Government and other collateral factors. A lot of
working experience and the lessons drawn from it enter the fray of
making. It hardly needs to be reiterated that judiciary being a
coordinate branch of the State has to respect the policy decisions of
other organs, especially in the absence of challenge thereto, consistent
with the doctrine of separation of powers which is held to be a Basic
Feature of the Constitution vide Indira Neheru Gandhi v. Raj
Narain,5. The contention of employees that in terms of earlier orders, a
AIR 1980 SC 1789
AIR 1975 SC 2299
section of them has already been given the benefit of counting full
service and therefore not extending the said facility to these would be
discriminatory, does not merit acceptance. Even in concluded matters,
Apex Court in Sudhansu Sekhar Jena supra has specifically reserved
liberty to the State to prefer review petitions in the matters that have
been already concluded in SLP/Civil Appeals. This observation will
find at Paragraph-21of the judgment. We are told by the learned AG
that such review petitions are already in the making, specific time for
filing them having been fixed, by the Apex Court itself.
We are not unmindful of cases wherein the employees might
have been granted regularization long after they were due for it. There
may be cases wherein with the judicial intervention the dates of
regularization of service are altered to the advantage of employees.
What would happen to such cases, has not been discussed by us, since
that is not the pleaded case before us in these appeals.
In the above circumstances, these appeals having common law
and facts are allowed; the impugned orders of the learned Single Judges
are set at naught; the writ petitions filed by the respondent-employees
are dismissed.
Costs made easy.
(Dixit Krishna Shripad)
Judge
Mruganka Sekhar Sahoo,J. I agree.
Judge
JOINTHigh Court, Cuttack
REGISTRAR-CUM-PRINCIPAL
SECRETARY The 15th day of July, 2025/GDS/Prasant
Reason: Authentication
Location: OHC, CUTTACK
Date: 16-Jul-2025 19:37:08
