[Cites 3, Cited by 0]
Orissa High Court
State Of Odisha & Another vs Barendra Krishna Nayak & Anr on 29 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.1445 of 2024
In the matter of an appeal under Clause 10 of the Letters
Patent of Patna High Court read with Article 4 of the Orissa
High Court Order, 1948 from order dated 23.04.2024 passed
by the learned Single Judge in W.P.(C) No.9708 of 2024.
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State of Odisha & Another ... Appellants
-versus-
Barendra Krishna Nayak & Anr. ... Respondents
Advocates Appeared in this case
For Appellants - Mr. Subash Bikash Panda,
Addl. Govt. Advocate
For Respondents - M/s. Atul Tripathy & A.
Sahoo, Advocates [R-1]
M/s. Debasis Nayak, S. K.
Sahoo, S Patel & P. K. Behera,
Advocates [P.R.]
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CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 29.01.2026
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PER KRISHNA S. DIXIT, J.
The State has preferred this Intra-Court Appeal challenging
the order dated 23.04.2024 passed by the learned Single Judge,
whereby the Respondent-Employee's W.P.(C) No.9708 of 2024
having been favoured, the following relief has been granted:
"5. In view of such position, the opposite parties are directed to
regularize the service of the Petitioners within a period of three months
from the date of passing of this order."
2. Learned AGA Mr. Panda, in his usual vehemence, argues
that the impugned order has been made without giving due
opportunity to the Appellants and therefore, the same is grossly in
violation of principles of natural justice and as a consequence is
liable to be voided. He draws our attention to 12.04.1993 letter of
the Secretary to the Department of Finance issued to all the
Secretaries of the Department to the effect that no person shall be
engaged after 12.04.1993, and submits that the engagement of the
Respondent-employee itself is illegal; that being the position, no
relief could have been granted to the Respondent-employee by the
learned Single Judge. He also drew our attention to the Resolution
dated 15.05.1997 published in the State Gazette to the effect that
those who have been engaged during post-ban period, should not
be granted benefit under the said Resolution. So arguing, he seeks
voiding of the impugned order.
3. Learned counsel appearing for the Respondent-employee,
per contra, opposes the Appeal making submission in justification
of the impugned order and the reasons on which it has been
constructed. He draws attention of the Court to the letter dated
15.12.2000 issued by the Director of Municipal Administration to
the Executive Officers of all Urban Local Bodies and says that the
ban order or the Resolution, which Mr. Panda pressed into service,
would not be applicable to the case of his client. He also places
reliance on the decisions in Jaggo vs. Union of India, 2024 INSC
1034, Dharam Singh vs. State of Uttar Pradesh, 2025 INSC 998
and decision of this Bench made in W.A. No.857 of 2024 between
Orissa Water Supply and Sewerage Board vs. Bijay Kumar Samal
& connected matters disposed off on 30.07.2025.
4. Having heard learned counsel for the parties and having
perused the Appeal papers, we decline indulgence in the matter for
the following reasons:
4.1. The vehemence submission of Mr. Panda that the learned
Single Jude entered the impugned order without giving
opportunity of hearing, may not be much disputed. However, we
have given full hearing at the appellate stage to demonstrate merits
in the Appeal as if it is original proceeding. The Apex Court in
Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818 has
observed that the lacuna of depriving a person of opportunity of
hearing at the initial stage can be cured by giving full opportunity
at the appellate stage. This is a kind of post-decisional hearing.
Thus whatever prejudice caused is set right.
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 regularisation 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.
4.3. Learned counsel for the Respondent-employee is more
than justified in drawing our attention to the letter dated
15.12.2000, which reads as under:
"Further, the D.I.Rs/N.M.Rs engaged before 19.05.97 may continue with
consolidated wage in accordance with this Department Circular
No.16880/HUD, dated 15.05.1999, and the regularization of their services
in non-L.F.S. cadre may be considered by the respective Councils, befitting
their qualifications in the respective posts, as well as on completion of 10
years as D.I.Rs/N.M.Rs against sanctioned posts only. Deviation, if any,
will be seriously viewed."
Mr. Panda interjects at this stage to tell us that in the absence
of sanctioned post, the letter of Director, Municipal Administration
would not come to the rescue of the Respondent-employee. We do
not agree with this, because the letter dated 31.01.2024 issued by
the Commissioner of Cuttack Municipal Corporation, a copy
whereof was Annexure-8 in the W.P.(C) No.9708 of 2024, gives an
indelible impression that there are two posts, and that the
Respondent-employee is working against one of them. The said
document formed part of writ petition also. Learned counsel
appearing for the Respondent-employee is more than justified in
placing reliance on the march of law from Umadevi supra to Jaggo
supra and to an extent the rigour in the former has been diluted.
In the above circumstances, this writ appeal being
devoid of merits is liable to be dismissed and accordingly
it is, costs having been reluctantly made easy. The
impugned order of the learned Single Judge shall be
implemented within a period of six weeks, without giving
scope for punitive action in contempt jurisdiction.
Web copy of the judgment be acted upon by all concerned.
(Dixit Krishna Shripad)
Judge
(Chittaranjan Dash)
Judge
Orissa High Court, Cuttack
The 29th day of January, 2026/AKPradhan
Signed by: ANANTA KUMAR PRADHAN
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 30-Jan-2026 14:55:45
