Orissa High Court
Prasanta Kumar Swain vs State Of Odisha And Others .... Opposite ... on 27 November, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26118 of 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India.
..................
Prasanta Kumar Swain .... Petitioner
-versus-
State of Odisha and Others .... Opposite Parties
For Petitioner : Dr. J.K. Lenka, Advocate
For Opp. Parties : Mr. P.K. Panda, ASC
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------
Date of Hearing:27.11.2025 and Date of Judgment:27.11.2025
--------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. Heard Dr. J.K. Lenka, learned counsel for the
petitioner and Mr. P.K. Panda, learned Addl. Standing
Counsel for the State.
2. Pursuant to order dated 11.11.2025, learned
Addl. Standing Counsel produced the instruction
provided by the Directorate of Fisheries. The same be
// 2 //
kept in record. Basing on the instruction, it is
contended that vacant post of driver was available in
the establishment of FFDA, Cuttack w.e.f. 01.03.2018.
3. The present Writ Petition has been filed inter alia
with the following prayer:-
"The petitioner, therefore, most humbly prayed
that this Hon'ble Court would graciously be pleased
to:-
i) Admit the writ application;
ii) Call for the records;
iii) Issue Rule NISI calling upon the Opp. Parties to
show cause as to why the Opposite Parties should not
be directed to regularize the services of the petitioner
w.e.f 01.03.2004 at par with other similarly situated
employees regularized from the said date as per order
dated 11.02.2010 at Annexure-14 and sanction and
pay the differential salary in the time scale of pay
with annual increments revised from time to time from
01.07.2004 to till date by modifying regularization
orders dated 27.11.2019, 13.12.2019 and 07.01.2020
at Annexures11, 12 and 13 respectively and,
accordingly, grant all other consequential, financial
and service benefits as admissible under law from
time to time;
And as to why the conditions mentioned in order
dated 27.11.2019, 13.12.2019 and 0 7.01.2020 at
Annexures -- 11, 12 and 13 that petitioner is not
entitled to be covered under old OCS (Pension) Rules,
1992 and GPF Subscription as per GPF (Orissa) Rule,
1938 should not be quashed and issue a writ of
Mandamus or any other appropriate writ directing the
Opp. Parties to allow the present Petitioner to be
covered under pensionary benefit as per old OCS
(Pension) Rules, 1992 and GPF Subscription as per
GPF (Orissa) Rule, 1938 by counting past services as
qualifying service for the purpose of pension and
pensionary benefits;
// 3 //
And, if the Opposite Parties fail to show cause or
sufficient cause, the rule be made absolute."
3.1. It is the case of the petitioner that petitioner was
initially engaged on adhoc basis vide order dated
15.02.1996 under Annexure-1 and he was allowed to
work in BFDA, Jagatsinghpur. Such order was issued
by the Collector-cum-Chairman, BFDA, Jagatsinghpur-
O.P. No.3. It is further contended that while so
continuing in terms of order under Annexure-1,
petitioner was regularly appointed as against the post
of Amin vide order dated 11.07.1996 of the self-same
Collector-cum-Chairman, Jagatsinghpur-O.P. No.3
under Annexure-2.
3.2. It is contended that while so continuing under
BFDA as a regular employee in terms of order dated
11.07.1996 under Annexure-2, employees working
under BFDA merged with FFDA w.e.f. 01.03.2004. After
such merger of both the units w.e.f. 01.03.2004, vide
letter dated 31.08.2004 under Annexure-6 of Opp.
Party No.1, when Collector-cum-District Magistrate,
Jagatsingpur was requested to dis-engage the present
// 4 //
petitioner, on the ground that petitioner has been
illegally engaged under BFDA vide orders issued under
Annexure-1 and 2 by O.P. No.3, challenging the same,
petitioner approached this Court by filing W.P.(C)
No.9798 of 2004.
3.3. It is contended that this Court while issuing
notice of the matter, passed an interim order and in
terms of the interim order so passed, petitioner was
allowed to continue in the post of Amin. However, vide
judgment dated 07.05.2018 under Annexure-10, the
said Writ Petition was disposed of inter alia with the
following observation and direction so contained in
Para-8. Para-8 of the judgment reads as follows:-
"8. Taking into account the developments taken
place from the correspondence dated 20.9.2004 vide
Annexure-11 and the request of the Director, to the Joint
Secretary vide his letter dated 16.3.2018 requesting
thereby to find out a solution to the case of the petitioners,
this Court though declares the writ petition is premature in
absence of any disengagement order being communicated
to the petitioners but, however, looking to the whole
developments involved herein and the regularisation of
other similarly situated employees, for the period of
service as regular employees involving both the
petitioners, this Court directs the opposite party nos.3 and
4 to take a decision in the matter of continuance of the
petitioners keeping in view all the above developments
and considering that the petitioners are already
regularized vide communication at Annexures-5 and 6 and
are allowed regular scale of pay Rs.825-15-900- EB-20-
// 5 //
1200/- and Rs.750-12-870-EB-14-940/- respectively with
all other service benefits being extended all through."
3.4. Learned counsel for the petitioner contended that
in terms of the said order, petitioner instead of being
regularized against the vacant post of Amin as available
as on 01.08.2008, so reflected under Annexure-9, was
regularized as against the vacant post of driver vide
order dated 07.01.2020 under Annexure-13
prospectively.
3.5. It is contended that since petitioner was
regularized while continuing under BFDA vide order
dated 11.07.1996 and the said order was never recalled
or set aside and petitioner by virtue of the interim order
passed by this Court in W.P.(C) No.9798 of 2004,
continued in the said regular post till the matter was
disposed of by this Court vide judgment dated
07.05.2018, petitioner's regularization w.e.f.
11.07.1996 should have been confirmed as against the
vacant post of Amin instead of being regularized as
against the post of Director in the establishment of
Opp. Party No.4 prospectively vide order dated
// 6 //
07.01.2020 and thereby dis-entitling the petitioner to
get the benefit of pension and other pensionary benefit
as provided under OCS(Pension) Rules, 1992 (in short
Rules).
3.6. It is also contended that similarly situated
employees working under BFDA on the face of merger
with FFDA w.e.f. 01.03.2004 were regularized vide
order dated 11.02.2010 under Annexure-14 but w.e.f.
01.03.2004. Subsequent to such regularization, when
steps were taken to withdraw the benefit of the order
dated 11.02.2010, the matter was assailed by the
employees therein before this Court in W.P.C(OA)
No.3133 of 2018 and batch. This Court vide order
dated 15.02.2023, while quashing order of reversion,
upheld the order passed on 11.02.2010 under
Annexure-14.
3.7. Learned counsel for the petitioner accordingly
contended that since petitioner while continuing in
BFDA was regularized vide order dated 11.07.1996
under Annexure-2 and by virtue of the interim order
// 7 //
passed in W.P.(C) No.9798 of 2004, he continued in
that capacity till the Writ Petition was disposed of vide
judgment dated 07.05.2018 under Annexure-10,
petitioner should have been regularized as against the
post of Amin or as against the post of Driver from the
date Annexure-2 was issued or at best w.e.f.
01.03.2004, when BFDA merged with FFDA. Similarly
situated employees of BFDA vide order dated
11.02.2010 under Annexure-14 were extended with the
benefit of absorption in FFDA w.e.f. 01.03.2004 also.
3.8. Making all these submissions, learned counsel for
the petitioner contended that the impugned order dated
07.01.2020 in regularizing the petitioner as against the
post of Driver prospectively in the office of O.P. No.4
requires a modification and petitioner be treated as a
regular employee under FFDA with effect from the date
he was regularized vide order dated 11.07.1996 under
Annexure-2 or w.e.f. 01.03.2004, in terms of order
dated 11.02.2010 so issued under Annexure-14.
// 8 //
4. Learned Addl. Standing Counsel on the other
hand made his submission basing on the stand taken
in the counter affidavit. It is contended that petitioner
was initially engaged vide order dated 15.02.1996
under Annexure-1 by the Collector-cum-Chairman,
BFDA, Jagatsinghpur as against the post of Amin. But
prior to providing him such engagement to the
petitioner, prior permission of the Directorate of
Fisheries was never taken, which was a mandatory
requirement. Not only that, without taking prior
permission from the Directorate of Fisheries, petitioner
was regularized by the self-same Collector-O.P. No.3
vide order dated 11.07.1996 under Annexure-2.
4.1. However, after merger of both the organization i.e.
BFDA and FFDA w.e.f. 01.03.2004, when it was found
that petitioner has been illegally appointed as against
the post of Amin vide order under Annexure-1 and
subsequently regularized vide order dated 11.07.1996
under Annexure-2 of O.P. No.3, petitioner's very initial
// 9 //
order of appointment being contrary to law, he was
held not eligible and entitled to continue in service.
4.2. Accordingly, vide letter dated 31.08.2004 under
Annexure-6, O.P. No.1 directed Collector-cum-
Chairman, BFDA and FFDA, Jagatsinghpur-O.P. No.3
to terminate the services of the petitioner. Such
direction of O.P. No.1 could not be complied with,
because of the interim order passed by this Court in
W.P.(C) No.9798 of 2004.
4.3. It is also contended that this Court while
disposing W.P.(C) No.9798 of 2004 vide judgment dated
07.05.2018 under Annexure-10, never interfered with
the letter issued by the Govt. on 31.08.2004 under
Annexure-6. Instead this Court directed for fresh
consideration of the petitioner's claim for his
continuance under FFDA. It is contended that
pursuant such order of this Court, petitioner was
regularized vide order dated 07.10.2020 as against the
vacant post of Driver under Annexure-13 in the office of
O.P. No.4.
// 10 //
4.4. It is accordingly contended that since letter dated
31.08.2004 so issued by the Govt. under Annexure-6
was never interfered with by this Curt in its judgment
dated 07.05.2018 in W.P.(C) No.9798 of 2004, claim of
the petitioner to get the benefit of regularization w.e.f.
01.03.2004 in terms of order dated 11.02.2010 under
Annexure-14 is completely misconceived and it cannot
be allowed. Stand taken in Para-11 to 14 of the counter
affidavit reads as follows:-
"11. That, subsequently, the said appointment of the
Petitioner was continued vide Order No.1249 dated
11.07.1996 (Annexure-2) with a condition that the
appointment is purely temporary in nature and can be
terminated at any time without assigning any reason
thereof. The order nowhere states that the appointment
has been made in regular basis.
It is humbly submitted that the regularization of service of
the Petitioner was approved by the Managing Committee
of the BFDA Agency in their 3rd Meeting held on
29.10.1996, wherein, the Opposite Party No.2 was a
signatory in the said meeting. But, as per the Bye-Law of
the said Agency, the Opposite Party No.2 is not a member
of the Managing Committee, to be accounted for the
decision taken by the Agency.
12. That, while the matter stood thus, the Govt. of
India vide Circular No. 31013/4/2001 Fy(3) dated
26.03.2004 communicated their decision to implement the
development of the Fresh Water Aqua Culture and
Brackish Water Aqua Culture under a single Agency i.e.
Fish farmers Development Agency (FFDA). Accordingly, the
BFDA ceased to exist w.e.f. 28.02.2004. Hence, it was felt
necessary to amalgamate the BFDA with the FFDA and
continue the developmental activities earlier performed by
the BFDA agency under the fold of FFDA. Further, it was
decided to absorb the staff of the BFDAs into the
respective FFDAS.
// 11 //
13. That, it is respectfully submitted here that, on account
of merger of BFDA with FFDA, proposal for re-organizing
of staff pattern of FFDAs and BFDAs was submitted to the
Government in F& ARD Department vide D.O. No. 14213
dated 07.06.2004, wherein, cadre wise justification of
continuance of the posts relating to the BFDA and FFDA
after merger were given at Annexure-II to the letter.
It is further revealed from the aforesaid D.O. letter of the
Director of Fisheries, the Petitioner along with another
employee i.e. Prashant Kumar Roul were appointed by the
Collector, Jagatsinghpur as Amin and Peon respectively
under BFDA, Jagatsinghpur beyond the sanctioned
strength and without obtaining permission either from the
Government or from the Director of Fisheries.
Copy of the D.O. Letter No. 14213 dated 07.06.2004 of the
Opposite Party No.2 is annexed herewith as Annexure-
B/1.
14. That, it is stated that basing upon the proposal of
the Opposite Party No. 2 as at Annexure-A/1, the Opposite
Party No. 1 in their D.O. Letter No.13300 dt.31.07.04,
communicated their decision to the Director of Fisheries,
Odisha(i.e. Opposite Party No.2) to retrench the staff
appointed unauthorizedly in FFDA/BFDA by the different
Collectors.
Copy of the D.O. Letter No. 13300 dated 31.07.2004 of the
Opposite Party No. 1 is annexed herewith as Annexure-
C/1.
Accordingly, pursuant to the aforesaid decision of the
Opposite Party No.1, the Director of Fisheries, Odisha (i.e.
Opposite Party No.2) instructed to the Collector,
Jagatsinghpur (i.e. Opposite Party No. 3) vide Letter
No.22494 dated 31.08.2004 (Annexure-6) to disengage the
Petitioner along with another."
5. To the submission made by the learned Addl.
Standing Counsel, learned counsel for the petitioner
made further submission basing on the stand taken in
the rejoinder affidavit. It is contended that since by the
time both the units i.e. BFDA and FFDA merged w.e.f.
01.03.2004, there were available vacancies as against
// 12 //
the post of Amin, petitioner should have been
regularized as against the said post. Instead of doing
that, when vide letter dated 31.08.2004 under
Annexure-6, direction was issued to the Collector-O.P.
No.3 to retrench the petitioner, the matter was assailed
before this Court in W.P.(C) No.9798 of 2004.
5.1. This Court though did not interfere with letter
dated 30.04.2004 but while disposing the Writ Petition
with a direction to take a fresh decision, clearly
observed that, order of regularization issued in favour
of the petitioner vide order dated 11.07.1996 under
Annexure-2 and continuance of the petitioner all
through is required to be taken into consideration. But
while passing the impugned order dated 07.01.2020
under Annexure-13, petitioner was regularized
prospectively as against the post of Driver and because
of the nature of order so passed, petitioner is now
deprived to get the benefit of pension and other
pensionary benefits and provided under the 1992
Rules.
// 13 //
6. Having heard learned counsel for the parties and
considering the submissions made, this Court finds
that petitioner was initially engaged in BFDA,
Jagatsinghpur vide order dated 15.02.1996 so issued
under Annexure-1 of Opp. Party No.3. Petitioner
subsequently was regularized as against the post of
Amin vide order dated 11.07.1996 under Annexure-2,
so issued by Opp. Party No.3. It is not disputed that
employees of BFDA and FFDA merged w.e.f.
01.03.2004.
6.1. After such merger of BFDA and FFDA vide letter
dated 31.08.2004 under Annexure-6, direction was
issued to Opp. Party No.3 to dis-engage the petitioner
as his very engagement issued under Annexure-1 and
Annexure-2, has not been issued with prior permission
of the Directorate of Fisheries. Such direction issued by
the Govt. in its letter dated 31.08.2004 under
Annexure-6 was assailed before this Court in W.P.(C)
No.9798 of 2004.
// 14 //
6.2. This Court while disposing the matter vide
judgment dated 07.05.2018, though did not interfere
with letter dated 31.08.2004, but while remitting the
matter to Opp. Party No.1 to take a fresh decision with
regard to continuance of the petitioner, observed that
petitioner's engagement vide order issued under
Annexure-1 and the order of regularization issued
under Annexure-2 are to be taken into consideration.
6.3. However, it is found that without proper
appreciation of the nature of observation and direction
contained in judgment dated 07.05.2018 under
Annexure-10, petitioner was regularized vide a fresh
order issued on 07.01.2020 under Annexure-13, as
against the post of Driver prospectively. It is also found
that similarly situated employees working under BFDA
after their merger with FFDA, were regularized vide
order dated 11.02.2010 under Annexure-14 but w.e.f.
01.03.2004. The said order has been upheld by this
Court in its order dated 15.02.2023 in WPC(OA)
No.3133 of 2018 and batch.
// 15 //
6.4. It is also found that after such merger of BFDA
with FFDA, vacancies were there as against the post of
Amin as well as Motor Driver as on 01.08.2008 so
available under Annexure-9. This Court taking into
account the nature of order passed by this Court in its
judgment dated 07.05.2018 under Annexure-10, the
benefit extended in favour of similarly situated
employees vide order dated 11.02.2010 under
Annexure-14 and the continuance of the petitioner in
terms of order dated 11.07.1996 under Annexure-2 all
through as against a regular post, is of the view that
petitioner's claim to get the benefit of regularization
w.e.f. 01.03.2004, requires a fresh consideration by
Opp. Party No.1.
6.5. Therefore, this Court while disposing the Writ
Petition, directs Opp. Party No.1 to take a fresh
decision with regard to the claim made by the
petitioner in the present Writ Petition for his
regularization w.e.f. 01.03.2004. This Court directs
O.P. No.1 to pass a fresh order taking into account the
// 16 //
observation indicated hereinabove within a period of 3
(three) months from the date of receipt of this order.
The order so passed be communicated to the petitioner.
7. The Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 27th November, 2025/Basudev
Location: High Court of Orissa, Cuttack
