[Cites 19, Cited by 0]
Orissa High Court
Kailash Chandra Panda vs State Of Odisha & Others .... Opposite ... on 7 March, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C ) Nos.248 & 289 of 2026
In the matter of an application under Article-226 of
the Constitution of India
..................
Kailash Chandra Panda Petitioner
....
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. S.K. Purohit, Adv. &
Mr. N.Rath, Adv.
For Opp. Parties : M/s. C.K. Pradhan,
Addl. Govt. Advocate
PRESENT:
THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY
-----------------------------------------------------------------------------
Date of Hearing: 11.02.2026 and Date of Judgment:07.03.2026
-----------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard learned counsel appearing for the parties.
3. Since the issue involved in both the cases is
identical, both the matters were heard analogously and
disposed of by the present common order.
// 2 //
4. Both the Writ Petitions have been filed inter alia
seeking a direction on the Opp. Parties to extend the
benefit of pension and other pensionary benefits, in
terms of the provisions contained under OCS (Pension)
Rules 1992.
5. It is the case of the Petitioners that Petitioners were
engaged as NMR prior to the cut-off date i.e. 12.04.1993
so prescribed by the Finance Department in its
resolution dt.15.05.1997.
5.1. It is contended that though the Petitioners were
engaged and allowed to continue as NMR/DLR prior to
12.04.1993, but in terms of the resolution issued by the
Finance Department on 15.05.1997, Petitioners were
never absorbed in the regular establishment. Not only
that, in terms of the decision of the Hon'ble Apex Court
in the case of Secretary, State of Karnataka and
Others Vs. Uma Devi Others, (2006) 4 SCC-1, no step
was also taken to absorb the Petitioners in the regular
establishment. Stipulation contained in Resolution
dt.15.05.1997 and the decision in the case of Umadevi
reads as follows:
// 3 //
Finance Deptt. No. 22764/F., dated the 15th May 1997
89. SUBJECT: Scheme for absorption of
N.M.R./D.L.R/Job contract Workers under
Regular Establishment - Preference to be given to
work-charge employees.
It has been brought to the notice of Finance
Department by the different Departments of
Government that directives from Hon'ble
Supreme Court, High Court and Orissa
Administrative Tribunal have been received for
preparation of a scheme to absorb the above
categories of workers under regular
establishment.
As per the above directive, Government have
been pleased to formulate the following norms
and conditions for the N.M.R/D.LR/Job contract
workers.
1. Separate Gradation/Seniority list shall be
prepared by the Appointment Authority for each
category of workers determining the length of
engagement of a particular person. The workers
should have worked under the administrative
control of the Department concemed directly for a
minimum period of 10 years. The engagement of
240 days, in a year shall be constructed as a
complete year of engagement for this purpose.
2. The workers should have been engaged prior to
12.4.1993. i.c.. prior to promulgation of ban on
engagement of N.M.R/D.L.RJJob contract
workers, etc.., vide Finance Department circular
No. 17815-W.F.-II 180/92-F., dated the 12th
April, 1993.
3. They should have the minimum
educational/Technical qualification prescribed of
the post against which they would be absorbed.
4. They should be within the age-limit prescribed
for 1st appointment to Government service after
deduction of the number of years they have
worked under the Department concerned:
Provided that the age-limit can be further relaxed
with the approval of Appointing Authority.
// 4 //
5. Absorption against the post for which regular
recruitment sules have been framed will be made
in relaxation of the relevant provisions by the
competent authority.
6. Vancancies reserved for S.CJS.T/O.B.C/
women candidate/physically handicapped, etc.,
will be filled up according to reservation rules
issued by Government from time to time
7. Absorption in Classes III and IV posts against
the vacant posts shall be made keeping in view
the austerity measures issued in F.D.O.M. No.
50791/F., dated the 10th December, 1996, read
with O.M.No.4986, dated the 7th February, 1997.
8. While filling up the regular vacant posts,
preference shall be given to work-charged
employees first. Where no suitable work-charged
employees are available to man the post,
preference shall be given in the following order,
ie., N.M.R., D.L.R., Job contract workers and
others.
9. On absorption in a regular establishment, the
worker shall draw the minimum of the time-scale
attached to the post and other allowance as
admissible under the rules from time to time.
10. The date of regularisation shall be reckoned as
the 1st appointment to the service for pension and
other service benefits.
11. The authority competent who shall issue the
order of regularisation shall certify that the person
(s) who are being regularized in the order were
engaged as such prior to 12th April, 1993, i.e.,
prior to promulgation of ban issued by Finance
Department and this has been agreed to by the
Finance Adviser of the Department.
12. This order shall supersede all the Orders/
Resolutions/ Notifications, etc., issued by various
Departments of Government for regularisation of
N.M.R/D.L.R/Job Contract and other such
category of workers.
Copy of all regularisation order issued in this
connection shall be forwarded simultaneously to
// 5 //
the Administrative Department concerned and
Finance Department.
5.2. Hon'ble Apex Court in the case of Uma Devi in
Para-44 of the said judgment has held as follows:-
"44. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
(supra), R.N. Nanjundappa (supra) and B.N.
Nagarajan (Supra), and referred to in paragraph-15
above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the
employees have continued to work for ten years or
more but without the intervention of orders of courts
or of tribunals. The question of regularization of the
services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases above referred to
and in the light of this judgment. In that context, the
Union of India, the State Governments and their
instrumentalities should take steps to regularize as a
one- time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders
of courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wages
are being now employed. The process must be set in
motion within six months from this date. We also
clarify that regularisation, if any already made, but
not subjudice, need not be reopened based on this
judgement, but there should be no further by passing
of the constitutional requirement and regularizing or
making permanent, those not duly appointed as per
the constitutional scheme."
5.3. It is however contended that while continuing as
NMRs/DLRs, instead of absorbing the Petitioners in the
regular establishment, in terms of the decision in the
// 6 //
case of Uma Devi and Resolution dt.15.05.1997,
Petitioners were brought over to the work-charged
establishment w.e.f. 1.3.2009.
5.4. It is further contended that while so continuing in
the work-charged establishment w.e.f 1.3.2009,
Petitioners were brought over to the regular (wages)
establishment. However, after retirement of the
Petitioners from the regular (wages) establishment,
Petitioners were not extended with the benefit of pension
and pensionary benefits in terms of the provisions
contained under OCS (Pension) Rules, 1992 (in short,
"Rules") on the ground that Petitioners have not
rendered the required qualifying service in the regular
establishment. In terms of the provision contained
under Rule 47(5) (i) of the Rules, Petitioners were held
not eligible and entitled to get the benefit of pension and
other pensionary benefits. Rule 47(5)(i) of the Rules
reads as follows:
47(5)(i) In the case of a Government Servant
retiring in accordance with the provisions of
these rules before completion of the
minimum qualifying service of ten years
shall not be entitled for pension, but he
// 7 //
shall be entitled to service gratuity to be
paid at a uniform rate of half month's
emoluments for every completed six monthly
period of service.
5.5. Learned counsel appearing for the Petitioners
vehemently contended that since because of the inaction
of the Opp. Parties in not absorbing the Petitioners in
the regular establishment, on the face of such long
continuance as NMR prior to 12.04.1993 in terms of
Resolution dt. 15.05.1997 and the decision in the case
of Uma Devi so cited supra and further continuance in
the work-charged establishment w.e.f 01.03.2009,
Petitioners on the ground that they have not rendered
the required qualifying service of 10 years, and
accordingly not eligible to get the benefit of pension and
pensionary benefits in view of the aforesaid Rules,
cannot be held as legal and justified.
5.6. Since for the latches on the part of the Opp.
parties, Petitioners could not complete the required
qualifying service, for the purpose of getting pension and
pensionary benefits under the Rules, they cannot be
deprived of the same. In support of the submissions,
reliance was placed to the following decisions:
// 8 //
1. Uday Pratap Thakur and Another Vs.
The State of Bihar and Others, Civil Appeal
No.3155 of 2023 @ SLP (C ) NO.10653 of 2018,
decided on 28.04.2023
2. Dharam Singh & Others Vs. State of
U.P. & Another, 2025 INSC 998
3. State of Himachal Pradesh & Another
Vs. Sheela Devi, 2023 LiveLaw (SC) 662
4. Bhola Nath Vs. State of Jharkhand and
Others, 2026 INSC 99.
5.7. Hon'ble Apex Court in the case of Uday Pratap
Thakur in Para-3.3 & 6.3 of the said judgment has held
as follows:
3.3 It is submitted that as observed and held by
this Court in the case of Prem Singh Vs. State of
Uttar Pradesh and Ors., (2019) 10 SCC 516, the
services rendered as work charged is to be
counted for pensionary benefits. Learned counsel
appearing on behalf of the appellants has heavily
relied upon the paragraphs 29, 30, 31, 32 and 36
of the said decision.
xxx xxx xxx
6.3 The decision of this Court in the case of Prem
Singh (supra), therefore, would be restricted to the
counting of service rendered as work charged for
qualifying service for pension.
5.8. Hon'ble Apex Court in the case of Dharam Singh
in Paragraph-13,14,15 & 17,18,19 & 20 held as follows:
13. As we have observed in both Jaggo (Supra)
and Shripal (Supra), outsourcing cannot
become a convenient shield to perpetuate
precariousness and to sidestep fair engagement
practices where the work is inherently perennial.
The Commission's further contention that the
appellants are not "full-time" employees but
continue only by virtue of interim orders also
// 9 //
does not advance their case. That interim
protection was granted precisely because of the
long history of engagement and the pendency of
the challenge to the State's refusals. It neither
creates rights that did not exist nor erases
entitlements that may arise upon a proper
adjudication of the legality of those refusals.
14. The learned Single Judge of the High Court
also declined relief on the footing that the
petitioners had not specifically assailed the
subsequent decision dated 25.11.2003. However,
that view overlooks that the writ petition squarely
challenged the 11.11.1999 refusal as the High
Court itself directed a fresh decision during
pendency, and the later rejection was placed on
record by the respondents. In such
circumstances, we believe that the High Court
was obliged to examine the legality of the State's
stance in refusing sanction, whether in 1999 or
upon reconsideration in 2003, rather than
dispose of the matter on a mere technicality. The
Division Bench of the High Court compounded the
error by affirming the dismissal without engaging
with the principal challenge or the intervening
material. The approach of both the Courts, in
reducing the dispute to a mechanical enquiry
about "rules" and "vacancy" while ignoring the
core question of arbitrariness in the State's
refusal to sanction posts despite perennial need
and long service, cannot be sustained.
15. Therefore, in view of the foregoing
observations, the impugned order of the High
Court cannot be sustained. The State's refusals
dated 11.11.1999 and 25.11.2003,in so far as
they concern the Commission's proposals for
sanction/creation of Class-III/Class-IV posts to
address perennial ministerial/attendant work,
are held unsustainable and stand quashed.
xxx xxx xxx
17. Before concluding, we think it necessary to
recall that the State (here referring to both the
Union and the State governments) is not a mere
market participant but a constitutional employer.
It cannot balance budgets on the backs of those
who perform the most basic and recurring public
functions. Where work recurs day after day and
year after year, the establishment must reflect
that reality in its sanctioned strength and
engagement practices. The long-term extraction of
regular labour under temporary labels corrodes
confidence in public administration and offends
// 10 //
the promise of equal protection. Financial
stringency certainly has a place in public policy,
but it is not a talisman that overrides fairness,
reason and the duty to organise work on lawful
lines.
18. Moreover, it must necessarily be noted that
"ad-hocism" thrives where administration is
opaque. The State Departments must keep and
produce accurate establishment registers, muster
rolls and outsourcing arrangements, and they
must explain, with evidence, why they prefer
precarious engagement over sanctioned posts
where the work is perennial. If "constraint" is
invoked, the record should show what
alternatives were considered, why similarly
placed workers were treated differently, and how
the chosen course aligns with Articles 14, 16 and
21 of the Constitution of India. Sensitivity to the
human consequences of prolonged insecurity is
not sentimentality. It is an institutional discipline
that should inform every decision affecting those
who keep public offices running.
19. Having regard to the long, undisputed service
of the appellants, the admitted perennial nature
of their duties, and the material indicating
vacancies and comparator regularisations, we
issue the following directions:
i. Regularization and creation of Supernumerary
posts: All appellants shall stand regularized with
effect from 24.04.2002, the date on which the
High Court directed a fresh recommendation by
the Commission and a fresh decision by the State
on sanctioning posts for the appellants. For this
purpose, the State and the successor
establishment (U.P. Education Services Selection
Commission) shall create supernumerary posts in
the corresponding cadres, Class-III (Driver or
equivalent) and Class-IV (Peon/Attendant/Guard
or equivalent) without any caveats or
preconditions. On regularization, each appellant
shall be placed at not less than the minimum of
the regular pay-scale for the post, with protection
of last-drawn wages if higher and the appellants
shall be entitled to the subsequent increments in
the pay scale as per the pay grade. For seniority
and promotion, service shall count from the date
of regularization as given above.
ii. Financial consequences and arrears: Each
appellant shall be paid as arrears the full
difference between (a) the pay and admissible
allowances at the minimum of the regular pay-
level for the post from time to time, and (b) the
amounts actually paid, for the period from
24.04.2002 until the date of regularization
// 11 //
/retirement/death, as the case may be. Amounts
already paid under previous interim directions
shall be so adjusted. The net arrears shall be
released within three months and if in default,
the unpaid amount shall carry compound interest
at 6% per annum from the date of default until
payment.
iii. Retired appellants: Any appellant who has
already retired shall be granted regularization
with effect from 24.04.2002 until the date of
superannuation for pay fixation, arrears under
clause (ii), and recalculation of pension, gratuity
and other terminal dues. The revised pension
and terminal dues shall be paid within three
months of this Judgement.
iv. Deceased appellants: In the case of Appellant
No. 5 and any other appellant who has died
during pendency, his/her legal representatives
on record shall be paid the arrears under clause
(ii) up to the date of death, together with all
terminal/retiral dues recalculated consistently
with clause (i), within three months of this
Judgement.
v. Compliance affidavit: The Principal Secretary,
Higher Education Department, Government of
Uttar Pradesh, or the Secretary of the U.P.
Education Services Selection Commission or the
prevalent competent authority, shall file an
affidavit of compliance before this Court within
four months of this Judgement.
20. We have framed these directions
comprehensively because, case after case, orders
of this Court in such matters have been met with
fresh technicalities, rolling "reconsiderations,"
and administrative drift which further prolongs
the insecurity for those who have already
laboured for years on daily wages. Therefore, we
have learned that Justice in such cases cannot
rest on simpliciter directions, but it demands
imposition of clear duties, fixed timelines, and
verifiable compliance .As a constitutional
employer, the State is held to a higher standard
and therefore it must organise its perennial
workers on a sanctioned footing, create a budget
for lawful engagement, and implement judicial
directions in letter and spirit. Delay to follow
these obligations is not mere negligence but
rather it is a conscious method of denial that
erodes livelihoods and dignity for these workers.
The operative scheme we have set here
comprising of creation of supernumerary posts,
full regularization, subsequent financial benefits,
and a sworn affidavit of compliance, is therefore
// 12 //
a pathway designed to convert rights into
outcomes and to reaffirm that fairness in
engagement and transparency in administration
are not matters of grace, but obligations under
Articles 14, 16 and 21 of the Constitution of
India.
5.9. Hon'ble Apex Court in the case of Sheela Devi in
Para-2,3,4 & 11 of the said judgment has held as
follows:
2. The appellant (hereinafter "State") is before
this Court complaining that the judgment of
the Himachal Pradesh High Court, granting
relief to the respondents (hereby referred to as
'employees') is erroneous.
3. The respondents (or their legal
representatives - as is the case in some
instances) before this Court were employed on
contract basis by the State in its Education
and in the Ayurvedic Department. Their
services as contractual employees were
regularized at different points in time.
4. Many of these contractual employees were
engaged prior to the introduction of the Rules
framed in 2004 (hereinafter referred to as
"2004 Pension scheme") whereby entitlement
of pension per se was abolished. On different
dates thereafter, the employees were
regularized. In some instances, they were
employed even after the 2004 Pension Scheme
came into force. Their claim was that upon
regularization, they were entitled to reckon the
period of contractual employment, for the
purposes of pension. The State rejected this
contention which led them to approach the
High Court. The High Court by the impugned
judgment allowed the writ petitions and
directed the State to extend pensionary
benefits on the basis of the benefit of including
contractual service claimed by them on the
reasoning that upon their regularization, the
period of contractual employment was also
reckonable for the purposes of future benefits
including - whereby applicable, pension.
// 13 //
xxx xxx xxx
11. In view of the above reasoning, this court
is of the opinion that there is no merit in the
appeal however, the following directions are
issued:-
(i) The state shall take immediate steps to
indicate the mode and manner of exercising
option by all the employees concerned (who
had been regularized after spells of
contractual employment) regardless of the
dates on which they were engaged i.e. prior to
the year 2003 or subsequently, within a time
frame, of within eight weeks from today.
(ii) After receiving the options within the time
indicated in the notice, the concerned
employee(s) who exercise the relevant options
should be notified about the amounts they
would have to remit in case any amount
towards contribution is required, clearly.
(iii) The options should be processed and
completed within eight weeks from the last
date of receiving options.
(iv) Time limit for payment too should be
indicated and entire process should be
completed within four months and all orders
fixing pensions or family pension as the case
may be, shall be issued.
5.10. Hon'ble Apex Court in the case of Bholanath in
Para-13.5 to 14 of the judgment has held as follows:-
"13.5. Such a decision must necessarily be a
conscious and reasoned one. An employee who
has satisfactorily discharged his duties over
several years and has been granted repeated
extensions cannot, overnight, be treated as
surplus or undesirable. We are unable to accept
the justification advanced by the respondents as
the obligation of the State, as a model employer,
extends to fair treatment of its employees
irrespective of whether their engagement is
contractual or regular.
13.6. This Court has, on several occasions,
deprecated the practice adopted by States of
engaging employees under the nominal labels of
// 14 //
"part-time", "contractual" or "temporary" in
perpetuity and thereby exploiting them by not
regularizing their positions. In Jaggo v. Union of
India, this Court underscored that government
departments must lead by example in ensuring
fair and stable employment, and evolved the test
of examining whether the duties performed by
such temporary employees are integral to the
day-to-day functioning of the organization.
13.7. In Shripal v. Nagar Nigam, and Vinod
Kumar v. Union of India, this Court cautioned
against a mechanical and blind reliance on
Umadevi (supra) to deny regularization to
temporary employees in the absence of statutory
rules. It was held that Umadevi (supra) cannot
be employed as a shield to legitimise exploitative
engagements continued for years without
undertaking regular recruitment. The Court
further clarified that Umadevi itself draws a
distinction between appointments that are
"illegal" and those that are merely "irregular", the
latter being amenable to regularization upon
fulfilment of the prescribed conditions.
13.8. In Dharam Singh v. State of U.P., this
Court strongly deprecated the culture of "ad-
hocism" adopted by States in their capacity as
employers. The Court criticised the practice of
outsourcing or informalizing recruitment as a
means to evade regular employment obligations,
observing that such measures perpetuate
precarious working conditions while
circumventing fair and lawful engagement
practices.
13.9. The State must remain conscious that part-
time employees, such as the appellants,
constitute an integral part of the edifice upon
which the machinery of the State continues to
function. They are not merely ancillary to the
system, but form essential components thereof.
The equality mandate of our Constitution,
therefore, requires that their service be
reciprocated in a manner free from arbitrariness,
ensuring that decisions of the State affecting the
careers and livelihood of such part-time and
contractual employees are guided by fairness
and reason.
13.10. In the aforesaid backdrop, we are unable
to persuade ourselves to accept the respondent-
State's contention that the mere contractual
nomenclature of the appellants' engagement
// 15 //
denudes them of constitutional protection. The
State, having availed of the appellants' services
on sanctioned posts for over a decade pursuant
to a due process of selection and having
consistently acknowledged their satisfactory
performance, cannot, in the absence of cogent
reasons or a speaking decision, abruptly
discontinue such engagement by taking refuge
behind formal contractual clauses. Such action is
manifestly arbitrary, inconsistent with the
obligation of the State to act as a model
employer, and fails to withstand scrutiny under
Article 14 of the Constitution.
FINAL CONCLUSION:
14. In light of our discussion, in the foregoing
paragraphs, we summarize our conclusions as
follows:
I. The respondent-State was not justified in
continuing the appellants on sanctioned vacant
posts for over a decade under the nomenclature
of contractual engagement and thereafter
denying them consideration for regularization.
II. Abrupt discontinuance of such long-standing
engagement solely on the basis of contractual
nomenclature, without either recording cogent
reasons or passing a speaking order, is
manifestly arbitrary and violative of Article 14 of
the Constitution.
III. Contractual stipulations purporting to bar
claims for regularization cannot override
constitutional guarantees. Acceptance of
contractual terms does not amount to waiver of
fundamental rights, and contractual stipulations
cannot immunize arbitrary State action from
constitutional scrutiny.
IV. The State, as a model employer, cannot rely
on contractual labels or mechanical application of
Umadevi (supra) to justify prolonged ad-hocism
or to discard long-serving employees in a manner
inconsistent with fairness, dignity and
constitutional governance.
V. In view of the foregoing discussion, we direct
the respondent-State to forthwith regularize the
services of all the appellants against the
sanctioned posts to which they were initially
appointed. The appellants shall be entitled to all
// 16 //
consequential service benefits accruing from the
date of this judgment."
5.11. Reliance was also placed to a decision of the High
Court of Punjab and Haryana rendered in the case of
Harbans Lal Vs. The State of Punjab and Others,
CWP 2371 of 2010. High Court of Punjab and
Haryana in the said judgment has held as follows:
This view has been followed by a Division Bench
of this Court in case of Hans Raj Vs. State of
Punjab and others, 2005(3) RSJ, 262. In this case
the Division Bench examined the Punjab
Municipal Employees Pension and General
Provident Fund Rules, 1994. Vide instructions
dated 8.1.1999, the State of Punjab had provided
that since the Pension Rules has been made
applicable in lieu of CPF, the period to be
considered as qualifying for pension has to be
restricted to the period for which the employee
was contributing to his CPF. These instructions
were held contrary to the Pension Rules by the
Division Bench. The Division Bench held that the
said instructions cannot substitute or supplant
the substantive provisions of the Pension Rules.
The petitioner was held entitled to count his
entire service from 1962 to 1998 as qualifying
service for the purpose of pension. The condition
that qualifying service would commence from the
date of contribution to the CPF, has been rejected
by the Division Bench.
From the above discussion, we have come to the
conclusion that the entire daily wage service of
the petitioner from 1988 till the date of his
regularization is to be counted as qualifying
service for the purpose of pension. He will be
deemed to be in govt. service prior to 1.1.2004.
The new Re-structured Defined Contribution
Pension Scheme (Annexure P-1) has been
introduced for the new entrants in the Punjab
Government Service w.e.f. 01.01.2004, will not
be applicable to the petitioner. The amendment
made vide Annexure P-2 amending the Punjab
Civil Services Rules, cannot be further amended
by issuing clarification/instructions dated
30.5.2008 (Annexure P-3). The petitioner will
// 17 //
continue to be governed by the GPF Scheme and
is held entitled to receive pensionary benefits as
applicable to the employees recruited in the
Punjab Govt. Services prior to 1.1.2004.
5.12. Reliance was also placed to decision of this Court
rendered in the case of Rabindra Kumar Jena Vs.
State of Odisha & Others, in W.P.(C ) Nos.36009 of
2021 & batch. This Court in Paragraph-20,21 & 22 of
the said judgment has held as follows:
20. In view of the provisions contained in Sub-rule(3)
of Rule-18 the entire work charged period of service
rendered by the petitioner shall be counted while
calculating the pensionary benefits payable to the
petitioners. There is no ambiguity in the said
provision and the same stand in absolute clear terms.
Therefore, anyway and argument that Rule 18(8)
stands in the debars persons like pensionary
benefits would be illegal and 10 the petitioner to get
pensionary fallacious.
21. The next question that falls for consideration is
whether the new Special Rule(4) to the Pension Rules
1992 which was amended in the year 2005by virtue
of Notification Dated 17.09.2005 creates ORISSH an
embargo for the petitioner to get pension under of
OCS Pension Rules, 1992. The embargo newly
introduced by Special Rule 4 to the Rules, 1992 in the
year 2005 provides that all persons appointed under
the Government of Odisha with effect from 1" day of
January, 2005 shall not be eligible for pension as
defined to Sub-rule(1) of Rule-3 of the Rules, 1992. In
new Sub-rule(4) the word that has been used as
"appointed" and the cut-off date is 01.01.2005. At
this juncture, this Court requires to examine as to
whether the word "appointed" used in Sub-rule(4)
would be restricted in its application only to regular
appointment/recruitments against the sanctioned
post after 01.01.2005. The word "appointment" or
"appointed" has not been defined in the Rules, 1992.
However, the definition clause. under 1992 provides
that the words which have not been defined in the
said Rules, shall ordinarily have the same meaning
as has been provided under the Odisha Service Code.
Under the Odisha Service Code appointment has
// 18 //
been categorized in several categories further there
exists no straight jacket definition of the word
appointment in Odisha Service Code. Therefore, in
absence of any specific definition of the word in the
Rules, the same would be interpreted in its common
parlance and the way it is understood generally.
Further, this Court cannot interpret a particular word
so as to restrict its not such an approach would Book
meaning, amount re-casting or rewriting the rules.
Under such circumstances, this Court would
obviously adopt the golden rule of interpretation and
give the word its common meaning and the way its
ordinarily understood i.e. without any categorization
or classification. Therefore, the embargo which was
imposed by introducing new Sub-rule(4) is general in
nature and applies to all appointments irrespective of
all the classification category, nature etc. made after
01.01.2005. And such appointments made after
1.1.2025 shall be governed by the new rule
appended to Sub-rule(4) of the Rule, 1992.
22. Considering the fact that the petitioner was
initially appointed by the Government although in a
work charged establishment and allowed to continue
in service uninterruptedly for a period of three
decades and it is only w.e.f. 31.10.2009, the service
of the Petitioners were regularized, in such factual
background, this Court is of the considered view that
the embargo imposed by introduction of new Sub-
rule(4) would not be applicable to the facts of the
present case. Even otherwise also learned counsel for
the State does not dispute the fact that the petitioner
was appointed by the Government prior to 2005
although on ad hoc basis. However, it was submitted
that he was appointed in a work charge
establishment in entitled to be coered under the year
1981 and, therefore, they are the Pension Rules,
1992.
5.13. Reliance was also placed to decision of this Court
rendered in the case of Surendranath Panda Vs. State
of Odisha & Others, W.P.(C ) Nos.32883 of 2023,
decided on 22.01.2026. This Court in Para-5 & 5.2 of
the said judgment has held as follows:
// 19 //
5. Having heard learned counsel for the parties
and considering the submissions made, this Court
finds that petitioner was engaged as a NMR in the
year 1979 and while continuing as such, he was
regularized vide order dated 19.06.2001 under
Annexure-1, where he joined on 22.06.2001.
Petitioner while continuing in such regular
establishment, he retired on attaining the age of
superannuation on 30.06.2009 as found from
Annexure-2. Though it is not disputed that
petitioner does not have the required qualifying
service to get the benefit of pension and other
pensionary benefits, placing reliance on the order
passed by the Tribunal, so confirmed by this Court
as well as by the Hon'ble Apex Court with due
implementation of the same in the case of
Kulamani Mishra, petitioner raised his claim under
Annexure-3.
Xxx xxx xxx
5.2. Since similar claim allowed by the Tribunal
confirmed by this Court as well as by the Hon'ble
Apex Court has been implemented, as found from
the documents available under Annexure-4 series,
it is the view of this Court that the ground on which
petitioner's claim has been rejected, is not
sustainable in the eye of law. Once a person
similarly situated has been extended with the
benefit, petitioner being similarly situated, is also
entitled to get similar benefit in view of the decision
of the Hon'ble Apex Court in the case of Arvind
Kumar Srivastava and Ram Gopal so cited
(supra).
5.14. It is also contended that similar claim when was
allowed by this Court vide order dt.04.10.2023 in W.P.(C )
No.31366 of 2023, Writ Appeal filed by the State against
such order in W.A. NO.1131 of 2024 was dismissed vide
order dt.29.01.2026. Order dt.29.01.2026 passed in
W.A. No.1131 of 2024 reads as follows:
// 20 //
"This Intra-Court Appeal by the State and its
officers calls in question a learned Single Judge's
Order dated 04.10.2023, whereby Respondents'
WP (C) No.31366 of 2023 having been favoured,
relief has been accorded to him as under
7. Having heard learned counsel for the
parties and on careful examination of the
background facts of the present case and
keeping in view the well settled position of law
that once an employee who was working
initially as DLR, thereafter brought over to
Work Charged establishment and finally his
service was regularized shall be considered for
payment of pensionary benefit by taking into
consideration as how much period of service
rendered on Work charged and DLR
establishment, calculate the minimum
qualifying period of service for grant of
pensionary benefit. Such a proposition of law
as has been propounded by this Court has
already been accepted by many judgments of
this Court Keeping in view the aforesaid legal
position, this Court deems it proper to dispose
of the Writ Petition by directing the Opposite
Parties to calculate the minimum qualifying
service period of the Petitioner taking the
shortfall period from the service period of the
Petitioner as work Charged employee/DLR to
calculate the minimum qualifying service
period, the benefit which is due und
admissible to the Petitioner on the basis of his
last pay drawn accordingly, the same be
sanctioned and disbursed to the Petitioner
within a period of two months from the date of
communication of the certified copy of this
order. In the event, the Petitioner though is
getting any other pensionary benefit, the same
shall be surrendered before the Government.
Any decision taken be communicated to the
Petitioner within 10 days of taking such
decision.
8. With the aforesaid observations/directions,
the writ application stands disposed of"
2 Appeal is filed after brooking a delay of 186
days and an application is moved supported
by an affidavit in L.A. No.2913 of 2024 seeking
its condonation. We have not come across one
// 21 //
Single Appeal of the State filed without
brooking delay. Be that as it may,
3. Learned counsel appearing for the
Respondents very fairly and appreciably
submits that the subject application be
allowed and delay be condoned
We do it and accordingly I.A. is disposed off.
4 The subject matter of this appeal is
substantially similar to the one in Writ Appeal
No. 975 of 2025 between Principal Secretary to
Government, Works Department, Govt. of
Odisha, Bhubaneswar v. Ashok Kumar
Pattanayak and Another heard & disposed off
by this Bench vide order dated 12.01.2026.
The State Appeal was dismissed in the said
case and therefore, this appeal by the State
has to meet the same fate. Learned counsel
appearing for the Respondent is justified in
telling that the case of his client is far better
than the cognate case, inasmuch as his
services were regularized w.e.f. 30.10.2018
and he retired on 30.06.2023.
Ordered accordingly and Writ Appeal is
dismissed. Order of the learned Single Judge
shall be implemented within an outer limit of
two months, failing which contempt action
would follow.
5.15. Not only that following the order in W.P(C )
NO.31766 of 2023, this Court in its order dt.28.02.2024
in W.P.(C ) No.4162 of 2024 held as follows:
22. Furthermore, considering the fact that the
petitioner has rendered coupled with the fact
that he more than 33 years of continuous
service couple was initially appointed by the
Government in the year 1990 in N.M.R. and
work charge establishment, this Court is bound
to give a liberal interpretation to the rules and
would like to remove the obstacles which stand
in the way of the petitioner in getting the
pensionary benefits after working
// 22 //
uninterruptedly for a period of almost three
decades. This view is supported by a judgment
of Hon'ble Supreme Court in the case of V.
Sukumaran vrs State of Kerala and and
another, reported in (2020) 8 SCC 106, which
was delivered by relying upon two other
judgments of Hon'ble Supreme Court in case of
V. Lakra vrs. Union of India reported in AIR
1983 SC 130 and Deokinandan Prasad vrs.
State of Bihar; reported in AIR 1971 SC 1409
holding that the pension provisions must be
given a liberal consideration as social welfare
measure.
23. In Prem Singh vrs. State of U.P. and others;
reported in (2019) 10 SCC 516, it was observed
that appointment of work charged employee not
made for a particular project work and the
nature of work was regular and perennial in
nature on a monthly salary where employees
were required to cross efficiency bar and were
also subjected to transfer like regular
employees, as such, their services were not
qualitatively different from regular employees
and hence the Hon'ble Supreme Court further
held that it would be unfair on the part of the
State Government to take work from them for
periods depriving them of their due
emoluments, during period they works on less
salary in work charged establishment and also
declining to count that period as qualifying
service for pensionary benefits which amounts
to adopting exploitative device and it was
further held that in the said case the service
rendered in work charged establishment
directed to be treated as qualifying service for
grant of pension. In the aforesaid reported
cases, the Hon'ble Supreme Court also directed
to count service rendered in work charged
establishment for the purpose of pensionary
benefits by regularized have also been extended
with pensionary benefits under the OCS
Pension Rules, 1992. In this context, learned
counsel for the petitioner has also filed several
office orders in the Writ Petition.
24. In the case at hand, the services rendered
by the Petitioner in N.M.R. and work charge
establishment also qualifies for the purpose of
// 23 //
calculating their pensionary benefits under
Rule 18/3) of the Rules, 1992. Additionally, the
newly added, Sub-rule(4) which applied to the
appointments made after 01.01.2005 will have
no application to the case of the Petitioner, who
was admittedly appointed in the N.M.R.
establishment on 1990 and subsequently
retired from service w.e.f. 31.03.2023.
Moreover, in absence of any rule specifying any
particular category of appointment in the newly
added Sub-rule(4) to Rule-3, it cannot be said
that the petitioner was not appointed prior to
the cut-off date i.e. 01.01.2005. Therefore, by
taking into consideration, the initial date of
appointment i.e. 1990 as Clerk on N.M.R. basis,
it cannot be said that the petitioner was
appointed prior to 01.01.2005 and, as such, the
embargo Rule-3(4) would be attracted to the
facts of the petitioner's case Moreover, similarly
situated employees, who were initially engaged
in work charged establishment and were
subsequently regularized have also been
extended with pensionary benefits under the
OCS Pension Rules, 1992. In this context,
learned counsel appearing for the Petitioner has
also filed several office orders in the Writ
Petition.
25. Therefore, this Court directs the Opposite
Parties to consider the case of the Petitioner for
pensionary benefits by permitting the Petitioner
to submit the pension papers afresh and in that
event, if the pension papers, in proper form, is
submitted before the authority concerned
within a period of one month from today, the
authority concerned shall do well to consider
the same and grant pensionary benefits as due
and admissible to the Petitioner within a period
of two months thereafter, if there are no other-
legal impediment.
5.16. Learned counsel appearing for the Petitioners
also contended that similar claim made by one
Kulamani Mishra when was allowed by the Tribunal
vide its order dt.03.09.2013 in O.A. No.2639(C) of 2012,
// 24 //
the same was assailed by the State before this Court in
W.P.(C ) No.20762 of 2015. However, after dismissal of
the Writ Petition by this Court vide order dt.22.03.2016
as well as by the Apex Court vide order dt.30.09.2016 in
Special Leave to Appeal (Civil Appeal No.18127 of 2016),
benefit of pension and pensionary benefit has been
extended in favour of the said Kulamani Mishra with
extension of the benefit of pension from the date of his
eligibility vide order dt.23.02.2019 of Executive
Engineer, Jagatsinghpur Irrigation Division.
5.17. It is accordingly contended that since similar
benefit has been extended in favour of Kulamani Mishra,
Petitioners being similarly situated, they cannot be
discriminated, in view of the decision of the Hon'ble
Apex Court in the case of (i) State of Uttar Pradesh
and Others Vs. Arvind Kumar Srivastav and Others,
(2015) 1 SCC (ii) State of Karnataka Vs. C. Lalitha
(2006) 2 SCC 747. Not only that, order passed in the
case of Harbans Lal so cited supra was confirmed by
the Apex Court while dismissing the appeal vide order
dt.30.07.2012 in SLP(C) No.23578 of 2012 & SLP (C )
// 25 //
No.17901 of 2011 (State of Punjab and Others Vs.
Harbans Lal).
5.18. Hon'ble Apex Court in the case of Arvind Kumar
Srivastav in Para-13 & 22 has held as follows:
13. In State of Karnataka v C. Lalitha state of
Karnataka v C Lalitha, (2006) 2 SCC 747 2006 SCC
(L&S) 447), which is the next case relied upon by the
learned counsel for the respondents, our attention was
draum to the following passage from the said judgment
(SCC p. 756, para 29)
"29 Service jurisprudence evolved by this Court from
time to time postulates that all persons similarly
situated should be treated similarly. Only because one
person has approached the court that would not mean
that persons similarly situated should be treated
differently. It is furthermore well settled that the
question of seniority should be governed by the rules. It
may be true that this Court took notice of the
subsequent events, namely, that in the meantime she
had also been promoted Commissioner which was a
Category I post but the direction to create a
supernumerary post to adjust her must be held to have
been issued only with e view to accommodate her
therein as otherwise she might have been reverted and
not to which she was not otherwise entitled to."
xxx xxx xxx
22. The legal principles which emerge from the reading
of the aforesaid judgments cited both by the appellants
as well as the respondents can be summed up as
under.
22.1. The normal rule is that when a particular set of
employees is given relief by the court, all other
identically situated persons need to be treated alike
would by extending that benefit. Not doing so amount to
discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied
in service matters more emphatically as the service
jurisprudence evolved by this Court from time to time
postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be
that merely because other similarly situated persons did
// 26 //
not approach the Court earlier, they are not to be treated
differently.
22.2. However, this principle is subject to well-
recognised exceptions in the form of laches and delays
as well as acquiescence. Those persons who did not
challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay
only because of the reason that their counterparts who
had approached the court earlier in time succeeded in
their efforts, then such employees cannot claim that the
benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be
treated as fence-sitters and laches and delays, and/or
the acquiescence, would be a valid ground to dismiss
their claim.
22.3. However, this exception may not apply in those
cases where the judgment pronounced by the court was
judgment in rem with intention to give benefit to all
similarly situated persons, whether they approached
the court or not. With such a pronouncement the
obligation is cast upon the authorities to itself extend
the benefit thereof to all similarly situated persons. Such
a situation can occur when the subject-matter of the
decision touches upon the policy matters, like scheme of
regularisation and the like (see K.C. Sharma v. Union of
India [K.C. Sharma v. Union of India, (1997) 6 SCC 721:
1998 SCC (L&S) 226/). On the other hand, if the
judgment of the court was in personam holding that
benefit of the said judgment shall accrue to the parties
before the court and such an intention is stated
expressly in the judgment or it can be impliedly found
out from the tenor and language of the judgment, those
who want to get the benefit of the said judgment
extended to them shall have to satisfy that their petition
does not suffer from either laches and delays or
acquiescence.
5.19. Reliance was also placed to a decision of the
Apex Court in the case of State of Karnataka &
Others Vs. C. Lalitha, (2006) 2 SCC 747. Hon'ble
Apex Court in para 29 of the decision in the case of C.
Lalitha has held as follows:
// 27 //
"29. Justice demands that a person should not be
allowed to derive any undue advantage over other
employees. The concept of justice is that one
should get what is due to him or her in law. The
concept of justice cannot be stretched so as to
cause heart-burning to more meritorious
candidates. Moreover, at the end of the day, the
Respondent has got what could be given to her in
law. As of now, she had already been enjoying a
higher scale of pay than what she would have got
if she was to join the post of Assistant Controller.
We, therefore, are of the opinion that interest of
justice would be sub-served if she is allowed to
continue in her post and direct the Appellant to
consider her seniority in the Administrative Service
in terms of the order of this Court dated 15th
March, 1994 that she would be the last in the
seniority list of the appointees in the post of
Category I Assistant Commissioner (Karnataka
Administrative Service)."
5.20. Making all these submissions, learned counsel
appearing for the Petitioners contended that appropriate
direction be issued to the Opp. Parties to extend the
benefit of pension and pensionary benefits in favour of
the Petitioners as provided under OCS (Pension) Rules,
6. Learned Addl. Government Advocate on the other
hand raised a preliminary objection with regard to
maintainability of the Writ Petition contending inter alia
that since prior to approaching the Opp. Parties, the
present Writ Petitions have been filed inter alia seeking a
direction to extend the benefit of pension and
// 28 //
pensionary benefits, the Writ Petitions at it's threshold
is not maintainable.
6.1. Bereft of the aforesaid submission, it is contended
that since Petitioners admittedly have not the required
qualifying service to get the benefit of pension as
provided under Rule 47(5)(i) of the Rules, no such
benefit can be extended in their favour. It is also
contended that knowing fully well that Petitioners will
not have the required qualifying service in the regular
establishment, since they accepted the benefit of
regularization while continuing in the work-charged
establishment, after retirement from the said
establishment, Petitioners cannot claim extension of the
benefit of pension and pensionary benefits under the
Rules. It is accordingly contended that since Petitioners
do not have the required qualifying service, no direction
be issued directing for extension of the benefit, as
prayed for.
7. Having heard learned counsel appearing for the
parties and considering the submission made, this court
finds that both the Petitioners which is not disputed are
// 29 //
engaged as NMR/DLR prior to 12.04.1993 i.e. the cut-off
date fixed by the Finance Department in its resolution
dt.15.05.1997. However, it is found that on the face of
such continuance as a NMR/DLR prior to 12.04.1993,
Petitioners were never regularized on completion of the
required tenure of engagement as NMR/DLR in terms
of the resolution dt.15.05.1997.
7.1. Not only that, on the face of the order passed by
the Apex Court in the case of Uma Devi so cited supra,
no step was taken to absorb the Petitioners in the
regular establishment, who had completed more than 10
years of services without being protected by any interim
order from any Court of law.
But in order to circumvent the direction of the
Apex Court, Petitioners were brought over to the work-
charged establishment w.e.f 01.03.2009.
7.2. It is also found that both the Petitioners were
brought over to the regular (wages) establishment, prior
to their retirement and both of them retired on attaining
the age of superannuation, but without having the
// 30 //
required qualifying service to get the benefit of pension
and pensionary benefits.
7.3. Placing reliance on the decisions so cited supra,
this Court is of the view that Petitioner's claim is
required to be considered by the Opp. parties to get the
benefit of pension and pensionary benefits under the
Rules. For the admitted latches on the part of the State
authority in not absorbing the Petitioners on the face of
such long continuance, Petitioners cannot be deprived of
the benefit of pension and other pensionary benefits.
This Court accordingly while disposing both the Writ
Petitions, permits the Petitioners to make a detailed
representation before Opp. Party No.1 claiming the
benefit of pension and pensionary benefits as provided
under the Rules.
7.4. It is observed that if such a representation will be
filed within a period of three (3) weeks hence, Opp. Party
No. 1 shall do well to take a lawful decision on the same
within a period of 3 (three) months from the date of
receipt of such representation. The order so passed by
Opp. Party No. 1 be communicated to the Petitioner.
// 31 //
7.5. It is however observed that, while taking such a
decision relevancy and effect of the decisions, so cited
supra, be taken into consideration and so also the benefit
extended in favour of Kulamani Mishra in its proper
perspective.
8. With the aforesaid observation and direction, both
the Writ Petitions stand disposed of.
9. Photocopy of the order be placed in the connected
case.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 7th March, 2026 /Sangita
Reason: AUTHENTICATION OF ORDER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 10-Mar-2026 11:01:30
