Smt. Arati Kumari Rout vs State Of Odisha Represented .... ...
2025 Latest Caselaw 8448 Ori

Orissa High Court

Smt. Arati Kumari Rout vs State Of Odisha Represented .... ... on 19 September, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P.(C) No.1270 of 2022

  Smt. Arati Kumari Rout        ....            Petitioner
                   Ms. Babita Kumari Pattnaik, Advocate

                            -Versus-
  State of Odisha represented      .... Opposite Parties
  through its Principal Secretary
  to Govt., Housing and Urban
  Development Department,
  Kharavel Bhavan, Unit-V,
  Bhubaneswar & others
                              Mr. Sarbeswar Behera, AGA

          CORAM:
          JUSTICE R.K. PATTANAIK

           DATE OF JUDGMENT:19.09.2025


1.

Instant writ petition is filed by the petitioner assailing the impugned orders as at Annexures-8 & 12 and for a direction declaring the order of regularization as per Annexure-6 to be valid and in accordance with the orders/instructions of the State Government at Annexures-5 & 9 series thereby extending her all such financial and service benefits including deductions from the monthly salary towards GIS subscription in terms of Annexure-7 series and to pass such other orders as deemed just and proper.

2. As pleaded on record, the petitioner, while continuing as a Khalasi on NMR basis being engaged as such under the Executive Engineer, P.H.Division-II, Bhubaneswar prior to 12th April, 1993, received an appointment as Khalasi on a

consolidated pay of Rs. 3,500/- per month against a sanctioned vacant post and was directed to join in PH Sub- Division, Unit-IX, Bhubaneswar as per Annexure-1. It is pleaded that the State Government took a policy decision with due concurrence of the Finance Department and was pleased to regularize the NMR and DLR staff against 961 posts created in the work charged establishment in the regular scale of pay communicated as per Annexure-2. It is claimed that the petitioner was continuing as a Khalasi pursuant to Annexure-1 and at that time, by office order dated 30th September, 2008 i.e. Annexure-3, she and others were appointed in the work charged establishment in a regular scale of pay. In the meantime, according to the petitioner, a provisional gradation list of work charged employees of the P.H. Division was published inviting objections from all such Class-IV employees and as per her reliable source, she was placed at the same position even thereafter,. The petitioner's claim is that while considering the proposal received for regularization of service vis-à-vis work charged employees, opposite party No.1 referred the matter to the Finance Department and taking into account, the resolution dated 15th May, 1997, it was clarified that while filling up the regular vacant posts, preference shall be given to the work charged employees and on the basis of such clarification, letter dated 22nd November, 2016 i.e. Annexure-5 (series) was addressed to opposite party No.2, who later communicated the same to all the Superintending Engineers P.H. Circles and the Executive Engineers P.H. Divisions (pre-restructured) by letter dated 17th December, 2016 stating therein that the work

charged employees can only be brought over to the regular establishment as and when the vacancies would arise in the corresponding posts of regular establishment and in that regard, references is made to Annexure-5 series. The further pleading is that pursuant to the decision of the Government as per Annexure-5 series, opposite party No.4 by order dated 20th March, 2017 regularized the services of the petitioner and others against the existing base level Group-D vacancies. Pursuant to the order of regularization as per Annexure- 6, the petitioner continued to receive salary which was being received, while engaged in the work charged establishment and such is the position as on date and the denial of the salary on any such ground of extra financial burden on the State exchequer and the decision as a result in view of Annexure-8 & 12 keeping the order of regularization vide Annexure-6 in abeyance is outrightly illegal, hence, the same are liable to be interfered with and quashed.

3. A counter affidavit is filed by opposite party Nos. 1 to 4 and the same is perused and it is pleaded therein that the petitioner has approached once again with a similar relief as in W.P.(C) No. 3771 of 2021. It is pleaded that considering the representation of the petitioner, in view of the direction issued in the above writ petition, the demand for regularization was rejected by order dated 3rd November, 2021 i.e. Annexure-12 by opposite party No.2. As to the gradation list of work charged employees of erstwhile Executive Engineer, P.H. Division-II, Bhubaneswar referred to by the petitioner at Annexure-4, it is claimed that the same

is not an approved one and the correct and final gradation list of Group-D work charged establishment has been prepared as per Annexure-A/4(also at Annexure-H/4). It is pleaded that a decision was taken in a meeting headed by the Executive Engineer, Public Health Division, Odisha held on 7th September, 2020 as at Annexure-B/4 to the effect that the gradation list of the work charged employee would be prepared keeping in view their initial dates of engagement as NMR/DLR/HR as the first criteria. Furthermore, it is stated that the proposal for regularization of work charged employees was moved to the Finance Department vide Annexure-C/4 for concurrence on the basis of the resolution dated 15th May, 1997 and the said letter was communicated to all the Superintending Engineers and Executive Engineers as per Annexure-D/4 and after receipt of the same, the erstwhile Executive Engineer, P.H. Division-II, Bhubaneswar by office order at Annexure-6 regularized the services of the work charged employees including the petitioner and all of them were brought over to the regular establishment but after verification, since it was issued inadvertently, the same had to be kept in abeyance vide Annexure-8 and also the process for deduction of GIS and opening of PRAN account. At last, it is pleaded that due to financial constraint, as by the time when the decision as per Annexure-6 was taken, there was no allocation of fund for drawal of salary of the employees, hence, the regularization order dated 20th March, 2017 was put on hold vide Annexure-8 and therefore, the decision is not arbitrary or unconstitutional but was only to expurgate the defects.

4. The rejoinder and reply affidavits filed by the respective parties are gone through.

5. Heard Ms. Patnaik, learned counsel for the petitioner and Mr. Behera, learned AGA for the State.

6. It is contended by the State that at the time of considering regularization of service of the work charged employees, the instructions as per the Annexure-9 series are to be followed, which is to the effect that a final gradation list prepared by the competent authority shall be taken into account and the regularization order shall have prospective effect only. In so far as the petitioner is concerned, as per the counter affidavit, she is placed at Serial No. 185 of the final gradation list i.e. Annexure-A/4 prepared considering the dates of initial engagement and since she is way below others, hence, could not be considered for regularization at that time and with respect to the representation received from her, it was followed by a speaking order dated 3rd November, 2021 at Annexure-12. It is claimed that a correct and approved gradation list of the work charged employees was prepared as per Annexure-A/4, to which, she never raised any objection and since some of the employees of the erstwhile establishment could only be regularized against the Group-D vacant posts by office order at Annexure-10, the rest are to be considered for regularization as and when the vacancies would arise and as such, the claim of regularization by her is untenable and thus, the same liable to be rejected.

7. The facts which are not in denial are to the following that the petitioner was on a muster roll engaged on 1 st March, 1992 and thereafter, on 15th May, 1997, the resolution of the Finance Department, Government of Odisha with a scheme framed for absorption of NMR/DLR/Job Contract Employees under the regular establishment arrived. A copy of the said resolution is at Annexure-13 of the rejoinder affidavit. The plea of the petitioner is that she was eligible to be absorbed against regular post in accordance with Annexure-13 having been engaged as a Khalasi on a consolidated remuneration of Rs.3,500/- and completed ten years of service as an NMR by 12th April, 1993 but it was followed by Annexure-1.

8. The petitioner was engaged as an NMR prior to 12th April, 1993 and had completed ten years of service and was eligible for regularization. However, the regularization of the petitioner was allowed in 2017 and it was in accordance with the Finance Department resolution i.e. Annexure-5. Such selection of the petitioner is on the basis of a gradation list prepared, a claim which is denied by the State. As per the counter affidavit of the State, it is made to understand that while considering regularization of the work charged employees in the year 2020, it was carried out on the strength of a final gradation list prepared with the claim that no objection to the same was received from the petitioner. But, it is not revealed, whether, the order of regularization in favour of the petitioner vide Annexure-6 was revoked. It is not pleaded anywhere by the State that the said order was ever recalled. The regularization of the petitioner and 30 others

was followed by Annexure-7 series and intimation was given to the Treasury for allotment of PRAN. The regularization order dated 20th March, 2017 was kept in abeyance, which is admitted by the State and it was on account of non- availability of allotment for drawal of salary. Neither any correspondence was made demanding allotment nor it was revoked, which is also an admitted fact. It is not revealed as to why the Authority concerned did not put forth the demand for allotment despite the regularization order i.e. Annexure-6. But, after a lapse of about three years, in the year 2020, regularization of 49 work charged employees was allowed but the name of the petitioner did not find a mention therein. It is made to suggest that due to non-receipt of allotment, the regularization order failed to be implemented. It is not that the regularization of the petitioner and others was recalled or any decision had to be taken in view of a dispute over seniority. Rather, the regularization was not given effect to for having not received allotment for drawal of salary.

9. In so far as the provisional gradation list at Annexure-4 is concerned, the name of the petitioner is found therein at serial No.20. It is the submission of Ms. Pattnaik, learned counsel for the petitioner that taking into account the said gradation list, the regularization was allowed. A copy of the final gradation list is at Annexure-H/4 of the counter. A decision as per Annexure-G/4 was taken in a meeting presided over by the Engineering-in-Chief, PH, Odisha, Bhubaneswar with all the Superintending Engineer, PH, Circular that gradation list is to be maintained in respect of

Group-C and Group-D work charged employees. Referring to Annexure-H/4, it is stand of the Govt. that the petitioner is way below therein and at serial No.185. The contention of Mr. Behera, learned AGA for the State is that considering the seniority among the work charged employees and their positions in Annexure-H/4, the regularization under the Wages Establishment was carried out in 2020. It is claimed that the provisional gradation list relied on by the petitioner at Annexure-4 is not the correct or final one. In any case, the petitioner was regularized along with others in the year 2017. How and in what manner, the regularization vis-à-vis the petitioner was considered and it was followed by Annexure-6 is received with no proper reply by the State. Admittedly, in Annexure-H/4, the petitioner is at serial No.185. It is supposed that the said gradation list i.e. Annexure-H/4 was prepared and finally published in respect of Group-D employees in the work charged establishment of PH, Division-II, Bhubaneswar after considering the objections. In view of the final gradation list at Annexure-H/4, it is claimed that the petitioner could not have been regularized in 2020.

10. The State Government has implemented a preference system or gradation for considering regularization of work charged employees. As per the policy decision, work charged employees are to be preferred over the NMR/DLR and Job contract workers at the time of regularization. Such is in accordance with the Finance Department resolution dated 15th May, 1997 i.e. Annexure-13. According to the said resolution, the work charged employees are to be given first

preference and if no one from among them found suitable, the NMR/DLR and Job contract workers are to be preferred.

11. Ms. Pattnaik, learned counsel for the petitioner submits that notwithstanding the non-implementation of Annexure-6 with the decision as per Annexure-8, at the time of regularization in the year 2020, the petitioner, who belongs to UR (Women) category, should have been considered, if in case the stand of the Govt. with reference to the Finance Department resolution i.e. Annexure-13 is to be accepted. According to the State, regularization of the work charged employees was taken up in terms of Annexure-13. As per the said resolution, vacancies reserved for SC, ST, OBC, Women etc. are to be filled up according to the reservation rules issued by the Govt. from time to time. The contention of Ms. Pattnaik, learned counsel for the petitioner is that the petitioner being a woman and as 33% of the vacancies are to be filled up from among the candidates of such category, the case of the petitioner could have been considered but no women candidate were regularized in the year 2020. To counter the same, Mr. Behera, learned AGA would submit that the petitioner cannot be permitted to demand any such reservation since she was engaged vide Annexure-1 against such quota. In other words, it is contended that the petitioner cannot be allowed to claim reservation, she having already availed it at the time of her initial engagement in 2006. The further contention is that the consolidated post of Khalasi was converted to a work charged post in 2008 as per Annexure-3 and therefore, women reservation would not be applicable. It

is argued that the petitioner could not have received engagement as NMR had the reservation rules not been followed and therefore, having availed such benefit, she is not to demand it again at the time of regularization.

12. The Court is not inclined to accept the contention of Mr. Behera, learned AGA for the State to the effect that the petitioner is not eligible to be considered at the time of regularization as against the posts reserved for UR Women category. A muster roll is prepared at the time of engagement of NMRs. In so far as reservation is concerned, it is applied at the time of a regular appointment. In other words, the benefits of reservation in respect of NMRs or other temporary staff, if eligible, are applied when any of them is or are absorbed into a regular establishment or appointed against a sanctioned post in accordance with the relevant rules or Govt.'s resolution. Indeed, reservation is always made applicable at the time of regularization against the permanent post. If it is claimed that no one from Women UR category was given regularization in 2020, it is definitely a wrong committed. Even accepting the final gradation list prepared as per Annexure-H/4, as against the posts reserved for women candidates, in view of the plea of the petitioner, her regularization shall have to be allowed. The decision as per Annexure-12 does not deal with any such plea of the petitioner on the basis of the reservation quota and demand for regularization. Rather, it is entirely based on the final gradation list and regularization to be permissible in the order of seniority. Even otherwise, with a final gradation list i.e.

Annexure-H/4 having been prepared, the Court is of the humble view that the petitioner ought to have been picked up for regularization against UR women category even when quota was a criterion at the time of initial appointment. If one is selected initially on a temporary basis against a quota, in absence of any stipulation to the contrary, the reservation rules are to be made applicable again at the time of regular appointment and herein, regularization has to be considered in accordance with Annexure-13. Nowhere in Annexure-13, it is indicated that temporary appointment or NMR engagement allowing preferential quota would stand as a bar to apply reservation rules at the time of regular appointment. Nothing is brought to the notice of the Court to satisfy that such an appointee cannot demand quota while being absorbed in regular establishment. At the time of regular appointment, a gradation list shall have to be in place in respect of the work charged employees but it must be accomplished strictly following the quota rules as per Annexure-13. The reservation rules apply to direct recruitment and not necessarily to the mode of initial engagement as an NMR though the specifics depend on the recruitment rules for regular position and whether, one qualifies for any age or experience relaxation. In fact, NMR is a temporary engagement and the reservation rules are designed for direct recruitment, which has a specific quota for reserved categories. If at the time of absorption in regular establishment, the reservation rules are to be applied, how then it can be worked out in the case of NMRs, when quota criteria were considered at the time of their initial

engagement. As it is understood, the regularization of the NMRs must have to be in compliance of Annexure-13 with preference to the work charged employees but subject to following ORV Act and such has been the policy decision since 1997.

13. Having concluded as above, the Court is of the view that the regular appointment of the petitioner was to be considered accordingly in terms of Annexure-13 as against the UR women category placing her in the gradation list accordingly. The petitioner appears to have been rightly considered for regular appointment in 2017 applying the quota rules despite her placement in Annexure-F/4 and it was according to Annexure-13 but, it was abandoned due to want of allotment required for drawal of salary and not for any other reason. The petitioner in anticipation waited for regularization but it was not considered in 2020 and finally turned down with the impugned decision as per Annexure-12 with a plea that she is not in the order of seniority. Thus, therefore, the conclusion of the Court is that the case of petitioner deserves consideration with a follow up action by the Authority concerned as no such reservation rules have been followed and adhered to at the time of regularization in 2020 as against the vacancies filled up in the Wage Establishment.

14. Accordingly, it is ordered.

15. In the result, the writ petition stands allowed. As a logical sequitur, the impugned decision vide Annexure-12 is hereby

set aside with a direction to opposite party No.2 to undertake the necessary exercise vis-à-vis regularization of the petitioner against Group-D post, if required by creating a supernumerary post, with effect from 22nd December, 2020 when such regular appointment was held vide Annexure-10, if not from an anterior date and to grant her all service and consequential benefits as admissible and to accomplish it at the earliest preferably within a period of eight weeks from the date of communication of this judgment.

16. Issue urgent certified copy as per rules.

(R.K. Pattanaik) Judge Kabita/Tudu