[Cites 2, Cited by 0]
Orissa High Court
Smt. Santilata Mahakud vs State Of Odisha & Others .... ... on 20 February, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21723 of 2016
Smt. Santilata Mahakud .... Petitioner
Mr. H.M. Dhal, Senior Advocate
-Versus-
State of Odisha & others .... OppositeParties
Mr. S. Panda, ASC
Mr. A. Parida, Advocate for O.P. Nos.3 and 4
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
Order 20.02.2026
No.
07. 1. Heard Mr. Dhal, learned Senior Advocate for the
petitioner and Mr. Panda, learned ASC for the State besides
Mr. Parida, learned counsel for opposite party Nos.3 and 4.
2. Instant writ petition is filed by petitioner assailing the
impugned orders as at Annexures-5 and 6 with the action of the
opposite parties in stopping the family pension in her favour for
being declared as arbitrary, illegally and without jurisdiction
and to restore such pension on the grounds stated.
3. Mr. Dhal, learned Senior Advocate appearing for the
petitioner submits that the petitioner's husband was working as
Work Sarkar on NMR basis and his service was regularized
vide Annexure-1 against a post created by the Government in
Housing and Urban Development Department by order dated
4th July, 1996 and was allowed to draw pay and other
allowances as applicable to the employees of the Municipality
from time to time. It is further submitted that such
regularization of service of the husband of the petitioner was
subsequent to creation of a post by the Government in terms of
the order dated 4th July, 1996 as at Annexure-2. It is submitted
that the petitioner's husband died in the year 2012 and
thereafter, she was allowed provisional pension as per
Annexure-4 but the Government declared regularization of the
deceased as void vide Annexure-6 duly communicated to her as
per Annexure-5. According to Mr. Dhal, learned Senior
Advocate, the appointment has been regular and therefore, the
Government could not have declared the same as irregular in
exercise of power conferred under Section 73-D of the Orissa
Municipal Act, 1950 (hereinafter referred to as 'the Act'). The
contention is that the deceased husband of the petitioner was
appointed against a post created by the Government vide
Annexure-2 and hence, he could not have been treated as an
irregular appointee and therefore, the action of opposite party
No.2 vide Annexure-6 cannot be sustained in law.
4. On the contrary, Mr. Panda, learned ASC for the State
would submit that the petitioner's husband was appointed after
the cut-off date i.e. 12th April, 1993, hence, he was not to be
regularized. The submission is that the husband of the
petitioner was not eligible for regularization against a
Government sanctioned post, which is in contravention of the
rules. The contention of Mr. Panda, learned ASC is that the
Housing and Urban Development Department found the service
of the deceased being regularized by the Executive Officer of
Basudev Municipality as illegal and therefore, it was followed
by Annexure-6. Referring to the counter affidavit filed through
opposite party Nos.1 and 2, the submission of Mr. Panda,
learned ASC is that the very appointment of the petitioner's
husband since found to be after the cut-off date, opposite party
No.2 was right and justified in declaring the regularization as
void and hence, the impugned order at Annexure-6 is perfectly
justified.
5. Recorded the submission of learned counsel for the
opposite party Nos.3 and 4.
6. No doubt, any such employment in the Municipality
shall be subject to Section 73(1) of the Act. From Annexure-2,
the Court finds that the post of Work Sarkar was created by the
Government in the Housing and Urban Development
Department in the year 1996. As against the post created, the
service of the petitioner's husband has been regularized vide
Annexure-1. The contention of Mr. Dhal, learned Senior
Advocate for the petitioner is that the deceased husband of the
petitioner was engaged in 1995 and thereafter, his service was
regularized as per Annexure-1 only upon creation of a post by
the Government vide Annexure-2. The objection of the State is
only on the ground that initial appointment of the husband of
the petitioner is prior to the cut-off date, hence, the
regularization of his service is invalid. Admittedly, the
deceased husband of the petitioner received his appointment in
the year 1996 revealed from Annexure-1.
7. In course of hearing, a decision of this Court in State of
Odisha and another Vrs. Barendra Krishna Nayak and
another (WA No.1445 of 2024 dated 29th January, 2026) is
cited at the Bar and on a reading of the same, the Court finds
that the challenge was to the regularization of the service of the
petitioner therein as was directed in W.P.(C) No.9708 of 2024
and considering the objection of the State on the ground that
regular recruitment was banned with effect from 12th April,
1993, it was held and concluded in the following words:
"4.2. The second contention of Mr. Panda that there
was a complete embargo against engagement
otherwise than on regular recruitment w.e.f.
12.04.1993 and therefore, any entry post-ban is
illegal, is difficult to countenance. Reasons for this
are not far to seek; firstly, a ban of the kind cannot be
treated as an impregnable China Wall; secondly, even
after the ban, thousands of employees were engaged,
may be in violation thereof, and the State cannot feign
ignorance of the same. Secondly, in thousands of
cases, this Court and the Apex Court have granted
regularization in worthy matters notwithstanding ban
of the kind; thirdly, no action is taken against the
officials who trampled the ban and made such
engagements. Ban of the kind was only a measure of
economic austerity and not anything beyond. If the
ban were to be mandatory, the State would not have
ignored its violation with impunity; lastly, whatever
arguable 'illegality', would diminish year by year and
should vanish at a long point of time, as has happened
in this case."
8. In so far as Section 73-D of the Act is concerned, it is
stipulated therein that any appointment made by a Municipality
without previous sanction of the State Government as required
under Section 73(1) thereof shall be treated as voidable. As it is
made to understand, in exercise of the powers confirmed
thereunder, the Government declared regularization of the
husband of the petitioner as void. As earlier stated, such a
decision of the Government is entirely based on the
appointment of the deceased having taken place prior to the
cut-off date i.e. 12th April, 1993. But having regard to the fact
that the petitioner has been appointed and subsequently
regularized vide Annexure-1 as against a post created by the
Government i.e. Annexure-2 and even though, such
regularization has taken place after the cut-off date but in view
of the judgment in Barendra Krishna Nayak (supra), the
Court is of the considered view that opposite party No.2 could
not have declared the regularization as void. In the aforesaid
decision, in spite of the ban, it has been held by the Court that
the service of an employee in the Cuttack Municipal
Corporation is to be regularized. The petitioner's husband died
in 2012 and nearly after three years, such a decision was taken
by the Government to discontinue with the family pension in
view of the service of the deceased declared void. But having
regard to the decision (supra) and considering the submissions
of learned counsel for the respective parties, notwithstanding
any such appointment having taken place after the cut-off date
and since the regularization has taken place as against a
sanctioned post created by the Government, the conclusion of
the Court is that the impugned order as at Annexure-6 is liable
to be interfered with and also Annexure-5 communicated to the
petitioner regarding the decision of the Government and
accordingly, it is ordered.
9. In the result, the writ petition stands allowed. As a
necessary corollary, the impugned orders as at Annexures-5
and 6 are hereby set aside. It is further directed that the
regularization of service of the petitioner's husband is to be
treated as regular thereby declaring the entitlement of family
pension to the petitioner withheld since 2015 and release and
disbursement of the same along with all the arrears as
admissible with the above exercise concluded at the earliest
preferably within a period of eight weeks from the date of
receipt of a copy of this order.
10. Issue urgent certified copy of this order as per rules.
(R.K. Pattanaik)
Judge
TUDU
