[Cites 19, Cited by 0]
Orissa High Court
Tripati Balaji Mishra vs State Of Odisha & Ors. .... Opposite ... on 8 May, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 6929 of 2022
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Tripati Balaji Mishra .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : Mr. S. Roy, Adv.
For Opp. Parties : Mr. P.K. Sahoo, ASC
Mr. M.K. Rath, Adv. For O.P. No.4
PRESENT:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:17.03.2026 & Date of Judgment: 08.05.2026
---------------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
The present Writ Petition is filed inter alia challenging order
dated 17.02.2022 so passed by Opp. Party No.1 under Anenxure-9.
Vide the said order claim of the Petitioner to absorb him as against the
post of Night Watchman in the office of Sub-Collector, Jeypore
retrospectively with effect from 01.10.1996 was rejected and so also
// 2 //
claim of Petitioner to be covered under the provisions of OCS
(Pension) Rules, 1992 and GPF (Odisha) Rules, 1938.
2. While assailing the impugned order of rejection so passed under
Annexure-9, learned counsel appearing for the Petitioner contended
that Petitioner was appointed as a temporary Peon against an existing
vacancy on 44 days basis in the establishment of Sub-Collector,
Jeypore - Opp. Party No.3 w.e.f. 01.10.1996 vide order dated
03.10.1996 so issued under Annexure-1. It is contended that even
though Petitioner was appointed as a temporary Peon in the vacant post
of Night Watchman in the office of Opp. Party No.3 vide order dated
03.10.1996 and he was allowed to continue as such but when was not
absorbed as against the post of the Night Watchman, Petitioner
claiming his absorption in the regular Class-IV post of Night
Watchman, approached the Tribunal by filing O.A. No.108 of 2000.
2.1. It is contended that the Original Application so filed, was disposed
of by the Tribunal vide order dated 17.01.2000 under Annexure-2 with
the following observation and direction so contained in Paragraph 4 &
5 of the order.
"4. No order can be passed to regularise the appointment
of an ad hoc employee contrary to recruitment rules. The
applicant shall be allowed to continue to hold the post until
the post is filled up by a regularly recruited candidate, if
his services have not been terminated in the meantime, and
// 3 //
if his services are required. He shall be given an
opportunity to compete with others if a recruitment test is
held. Hos over-age shall be relaxed in case he was within
the prescribed age limit at the time of his initial
appointment as an ad hoc employee.
5. The system of ad hoc appointment has been
deprecated by the Apex Court in several cases."
2.2. It is contended on the face of the order passed under Annexure-2
when neither Petitioner was regularized nor any recruitment process
was initiated to fill up the post in question by giving age relaxation to
the Petitioner, Petitioner again approached the Tribunal by filing O.A.
No.126 of 2009. The Tribunal while admitting the matter in O.A.
No.126 of 2009 vide order dated 04.02.2009, passed the following
order.
"We direct that the post of Night Watcher which is
presently held by the applicant on adhoc basis will not be
filled up by other means excepting by direct recruitment
and when such a direct recruitment is held, the applicant
would be given opportunity of competing along with others
in compliance of the orders of the Tribunal in O.A.
No.108/2000. We also direct that the applicant would
continue till recruitment test is held according to rules."
2.3. It is contended that on the face of such orders passed by the
Tribunal under Annexure-2 and the observation and direction contained
in order dated 04.02.2009 so passed in O.A. No.126 of 2009, no step
was taken to absorb the Petitioner in the regular establishment nor any
recruitment process was initiated to fill up the post on regular basis by
// 4 //
allowing the Petitioner to participate and by giving age relaxation. In
the alternate Petitioner vide order dated 19.02.2021, under Annexure-3
was engaged on ad hoc basis with usual D.A. as admissible.
2.4. Learned counsel appearing for the Petitioner contended that since
neither any step was taken to fill up the post on regular basis nor
Petitioner was absorbed on the face of his long continuance as a
temporary Watchman in terms of order dated 03.10.1996 and as an ad
hoc watchman vide order dated 19.02.2021, Petitioner approached this
Court by filing W.P.(C) No.9216 of 2021 seeking regularization of his
service. This Court vide order dated 09.03.2021 while disposing the
Writ Petition, directed the concerned authority to consider the case of
the Petitioner for his regularization within a period of 3 (three) months
from the date of receipt of the order.
2.5. It is contended that on being so communicated, Petitioner only vide
order dated 30.07.2021 under Annexure-6, was appointed as against the
vacant Class-IV post of Night Watchman in the office of Opp. Party
No.3. However, Petitioner was absorbed against the vacant post of
Night Watchman w.e.f.23.07.2021. Pursuant to the said order,
Petitioner joined as a regular Night Watchman in the office of Opp.
Party No.3 on 30.07.2021 under Annexure-7.
// 5 //
2.6. Learned counsel appearing for the Petitioner contended that since
Petitioner continued as a temporary and/or ad hoc Night Watchman
against a vacant post of Night Watchman in the office of Opp. Party
No.3 w.e.f. 01.10.1996 in terms of order dated 03.10.1996 under
Annexure-1 and no step was taken on the face of two successive orders
passed by the Tribunal to fill up the post on regular basis by allowing
the Petitioner to participate and by giving age relaxation, Petitioner
when was regularized against such vacant post only w.e.f.23.07.2021,
he made a detailed representation before Opp. Party No.1 with a prayer
to absorb him in the vacant post of Night Watchman w.e.f.01.10.1996
and with all service and financial benefits and to cover him under the
provisions of OCS Pension Rules, 1992 (in short 1992 Rules) and GPF
(Odisha) Rules, 1938 (in short 1938 Rules).
2.7. It is contended that such claim of the Petitioner when was rejected
vide order dated 17.02.2022 under Annexure-9, the present Writ
Petition was filed inter alia challenging the said order and with a prayer
to absorb him retrospectively w.e.f.01.10.1996 and to hold him eligible
for his coverage under the 1992 Rules and 1938 Rules.
2.8. Learned counsel appearing for the Petitioner contended that since it
is not disputed that the post in which Petitioner continued in the office
of Opp. Party No.3 as a temporary Night Watchman in terms of order
// 6 //
dated 03.10.1996 under Annexure-1 and as an ad hoc Night Watchman
vide order dated 19.02.2021 under Annexure-3 was vacant sanctioned
post from the date of his initial appointment w.e.f. 01.10.1996,
regularization of the services of the Petitioner against such vacant post
of Night Watchman w.e.f.23.07.2021 vide order dated 30.07.2021
under Annexure-6 is not just and proper.
2.9. It is contended that since Petitioner was absorbed against such
vacant post of Night watchman in the office of Opp. Party No.3
w.e.f.23.07.2021, Petitioner was not held eligible for his coverage
under the 1992 Rules as well as 1938 Rules. In the alternate, taking the
date of regularization to have been given effect to after 01.01.2005,
Petitioner was made eligible to be covered under the National Pension
System (in short NPS).
2.10. It is contended that since Petitioner continued against the vacant
post of Night Watchman in the office of Opp. Party No.3
w.e.f.01.10.1996 and the same is also admitted in the order of
regularization issued under Annexure-6, claim of the Petitioner could
not have been rejected on the ground indicated vide the impugned order
under Annexure-9 and instead Petitioner's claim for regularization
should have been made retrospectively w.e.f. 01.10.1996 and thereby
// 7 //
making the Petitioner eligible for his coverage under the 1992 Rules
and 1938 Rules.
2.11. It is further contended that since the State machinery on the face
of two (2) successive orders passed by the Tribunal, never filled up the
post by initiating any recruitment process and Petitioner was allowed to
continue against the vacant post of Night Watchman pursuant to order
under Annexure-1 dated 03.10.1996, Petitioner is eligible and entitled
to get the benefit of absorption retrospectively w.e.f. 01.10.1996 and
consequentially for his coverage under the 1992 Rules and 1938 Rules.
2.12. It is further contended that in order to deprive the Petitioner to get
the benefit of his coverage under the 1992 Rules and 1938 Rules,
Petitioner was regularized w.e.f. 23.07.2021 vide order under
Annexure-6. It is further contended that since Petitioner continued
against the vacant post in terms of order dated 03.10.1996 under
Annexure-1, there was no occasion to regularize him w.e.f. 23.07.2021
instead of absorbing him w.e.f. 01.10.1996.
2.13. It is also contended that similar situated employees engaged on
temporary/ ad hoc basis prior to 01.01.2005 and regularized after
01.01.2005, were extended with the benefit of coverage under the 1992
Rules as well as 1938 Rules vide various orders issued by the
Government under Annexure-10-Series.
// 8 //
2.14. In support of the claim of the Petitioner that he is entitled for his
absorption retrospectively w.e.f. 03.10.1996 and consequential
coverage under the 1992 Rules and 1938 Rules, learned counsel
appearing for the Petitioner relied on a decision of the Hon'ble Apex
Court in the case of State of Himachal Pradesh & Anr. Vrs. Sheela
Devi in SLP(C) No. 10399 of 2020, disposed of vide order dated
07.08.2023. Hon'ble Apex Court in Para 9 to 11 of the said Judgment
has held as follows:-
"9. The Learned Advocate General is correct in his
interpretation, inasmuch as a facial reading of Rule 2(g) would
indicate that contractual employees are excluded from the pale
of Pension Rules. However, what is significant is that the rule
itself in its opening terms saves the application of other
provisions of the pension rules: "Save as otherwise provided in
these rules". If the opening phrase of Rule 2 were to be
understood in this context, any interpretation of Rule 17 as is
urged by the State would render such substantive provision
redundant. Rule 17 was engrafted essentially to cater to the
eventuality, where the employees working on contract basis
were regularized at a later stage. It is only for the purposes of
pension that the past service as a contractual employee is to be
taken into account.
10. So far as the other arguments with respect to the
voluntariness when the employees enters into contractual
services is concerned, this Court is unpersuaded by the
submission because those terms were applicable as long as the
employees remained on contract. However, his or her status
ceased upon regularization.
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
// 9 //
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. 12. The appeal is disposed of in the above terms.
Pending application(s), if any, are also disposed of."
2.15. Reliance was also placed to a decision of this Court in the case of
Swetapadma Samal V. State of Odisha & Ors. (W.P.(C) No.26508 of
2017) disposed of on 22.09.2023. This Court in Para 6 to 11, 26 and 27
of the said decision has held as follows:-
"6. Regard being had to the facts and rival contentions, as
narrated above, the only question to be determined by this Court
is, whether the petitioner, who was initially appointed on
contractual basis prior to 01.01.2005 and subsequently
regularised after 01.01.2005, can be extended with the benefit of
the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 or
not?
7. There is no dispute before this Court that the petitioner was
appointed on contractual basis pursuant to the appointment
order issued on 07.07.2003, as per the prevailing 1972 Rules
and the guidelines issued from time to time, being sponsored by
the Chairman, Committee of the Chief Engineers and concerned
Heads of Department and Engineer-in-Chief (Civil), Odisha,
Bhubaneswar. Even though such order of appointment was
issued on contractual basis, that itself was against a substantive
vacancy. Merely because the Government had taken austerity
measures due to mounting revenue deficits, the petitioner was
given appointment on contractual basis for fixed term and on
completion of six years her services were regularised against a
substantive vacant post. This itself indicates that a right had
// 10 //
been accrued in favour of the petitioner, the day she joined in
the post on contractual basis and subsequently regularised in
the said post on completion of six years of service. By the time
the appointment on contractual basis was given on 07.07.2003,
the OCS (Pension) Rules, 1992 was in force. Therefore, rightly
after completion of six years of service on contractual basis,
when the petitioner was brought to the regular establishment,
her GPF account was opened and GPF number was allotted in
her favour by the opposite parties, bringing her into the
pensionable establishment. But all of a sudden, the benefit,
which had been extended in favour of the petitioner by opening
the GPF Account, was withdrawn on the sole ground contending
that by the date of regularisation of the services of the petitioner
since the OCS (Pension) Amendment Rules, 2005 has already
come into force, the petitioner cannot be brought into the fold of
the OCS (Pension) Rules, 1992. But fact remains, if the posts
are made available prior to the commencement of the OCS
(Pension) Amendment Rules, 2005 giving effect from
01.01.2005, the petitioner ought to have been covered under the
old rules, i.e. OCS (Pension) Rules, 1992, instead of bringing
her under the OCS (Pension) Amendment Rules, 2005, i.e., New
Restructured Defined Contribution Pension Scheme, which has
come into force with effect from 01.01.2005.
8. In G.P. Doval (supra), the apex Court held that if the first
appointment is made by not following the prescribed procedure
but later on the appointee is approved making his appointment
regular, it is obvious commonsense that in the absence of a
contrary rule, the approval which means confirmation by the
authority which had the authority, power and jurisdiction to
make appointment or recommend for appointment, will relate
back to the date on which first appointment is made and the
entire service will have to be computed in reckoning the
seniority according to the length of continuous officiation.
9. G.P. Doval (supra) has also been referred to in S. Sumnyan
(supra), wherein, the apex Court at paragraph34 of the said
judgment observed as follows:-
"34. We may here also appropriately refer to
another decision of this Court in the case of G.P. Doval v.
Chief Secy., Govt. of U.P. reported in (1984) 4 SCC 329,
wherein this Court held that regularization of the services of a
person, whose Page 19 of 33 initial appointment although not in
accordance with the prescribed procedure but later on approved
by an authority having power and jurisdiction to do so would
always relate back to the dates of their initial appointment. Para
13 is, which is reproduced hereinbelow:
// 11 //
"13. ..........................If the first
appointment is made by not following the
prescribed procedure but later on the
appointee is approved making his appointment
regular, it is obvious commonsense that in the
absence of a contrary rule, the approval which
means confirmation by the authority which
had the authority, power and jurisdiction to
make appointment or recommend for
appointment, will relate back to the date on
which first appointment is made and the entire
service will have to be computed in reckoning
the seniority according to the length of
continuous officiation. That has not been done
in this case.................. ........"
10. If the above mentioned principle is applied to the present
case, it would be seen that the petitioner herein was appointed
on contractual basis, pursuant to the order of appointment
issued on 07.07.2003, and thereafter her services were
regularised on completion of six years and she was allotted with
GPF Account bearing No. PW-068189, right from her
regularisation, monthly subscriptions towards GPF account
were deducted from her salary. Therefore, subsequent denial of
such benefit is arbitrary, unreasonable and contrary to the
provisions of law and, as such, is hit by Article 14 of the
Constitution of India.
11. It is of relevance to mention here that some of the Junior
Assistants, who were appointed on contractual basis with
consolidated remuneration in different Heads of the Department
in the year 2003 and subsequently brought over to regular
establishment, like the present petitioner, had preferred O.A.
No. 2984 (C) of 2006 and batch for their regularization and for
counting of their period of service rendered by them from the
date of their actual joining till regular appointment as
qualifying service period for the purpose of pension under the
OCS (Pension) Rules, 1992. The Tribunal, vide order dated
26.03.2009, allowed the aforesaid Original Applications. The
said order of the Tribunal was challenged by the Government in
Finance Department before this Court in W.P.(C) No. 12569 of
2010, and the said writ petition was dismissed vide order dated
23.02.2012. Consequentially, in adherence to the direction of
the Tribunal, which was confirmed by this Court by dismissing
the writ petition filed by the State on 23.02.2012 in W.P.(C) No.
12569 of 2010, the Finance Department extended the benefit of
the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 to
the employees similarly situated with the present petitioner.
Thereby, the Tribunal has committed gross error apparent on
// 12 //
the face of the record and, without taking into consideration the
above aspect in its proper perspective, directed the State
Government to take a decision regarding applicability of the
resolution dated 04.04.2007 to the Junior Engineers engaged on
contractual basis, which is absolutely fallacious and, therefore,
the same cannot be sustained in the eye of law.
xxx xxx xxx
26. Applying the said analogy to the present case, if the
petitioner was appointed against the substantive vacancy on
07.07.2003, i.e., prior to commencement of the OCS (Pension)
Amendment Rules, 2005, may be on contractual basis, and
discharging her responsibility and subsequently her services
were regularised after completion of six years uninterrupted
contractual employment, even though the OCS (Pension)
Amendment Rules, 2005 came into force with effect from
01.01.2005, that has no application to the present case and the
petitioner is entitled to such relief from the date of her initial
appointment and not from her regularisation of service after
completion of her six years of contractual employment. Under
such circumstances, the Tribunal should not have remanded the
matter to the State Government for consideration, so far as
applicability of the circular issued on 04.04.2007. Even
otherwise also, if the benefit has already been extended to the
job-contract and work-charged employees, the contractual
employee appointed against the substantive vacancy stands on a
much better footing than those persons, for which the benefit
should have been extended to the petitioner by reckoning her
service from the date of initial appointment on contractual
basis, otherwise, it will amount to unreasonable and arbitrary
exercise of power and, more so, violation of Articles 14 and 16
of the Constitution of India.
27. In view of the facts and law, as discussed above, the order
dated 21.09.2016 passed by the Odisha Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No. 3422 (C) of 2012 under
Annexure-9 cannot be sustained in the eye of law and the same
is hereby set aside. As a consequence thereof, this Court directs
the opposite parties to bring the petitioner to the fold of the OCS
(Pension) Rules, 1992 and the GPF (O) Rules, 1938 by
reckoning her date of initial appointment on contractual basis,
i.e., on 07.07.2003."
2.16. Reliance was also placed to another decision of this Court in the
case of Dr. Rajendra Narayan Sahu V. State of Odisha & Ors.
// 13 //
(W.P.(C) No. 23475 of 2023) disposed of on 04.07.2025. This Court in
Para 8, 9, 10 and 12 of the said decision has held as follows:-
"8. In Swetapadma Samal (supra), this Court have had the
occasion to consider an identical case and therein, it has been
concluded as such:
"26. Applying the said analogy to the present case, if
the petitioner was appointed against the substantive
vacancy on 07.07.2003, i.e., prior to commencement of the
OCS (Pension) Amendment Rules, 2005, may be on
contractual basis, and discharging her responsibility and
subsequently her services were regularised after completion
of six years uninterrupted contractual employment, even
though the OCS (Pension) Amendment Rules, 2005 came
into force with effect from 01.01.2005, that has no
application to the present case and the petitioner is entitled
to such relief from the date of her initial appointment and
not from her regularization of service after completion of
her six years of contractual employment. Under such
circumstances, the Tribunal should not have remanded the
matter to the State Government for consideration, so far as
applicability of the circular issued on 04.04.2007. Even
otherwise also, if the benefit has already been extended to
the job-contract and workcharged employees, the
contractual employee appointed against the substantive
vacancy stands on a much better footing than those persons,
for which the benefit should have been extended to the
petitioner by reckoning her service from the date of initial
appointment on contractual basis, otherwise, it will amount
to unreasonable and arbitrary exercise of power and, more
so, violation of Articles 14 and 16 of the Constitution of
India."
In sum and substance, on a proper reading of the above
decision, the Court finds that in view of the circular of the
Government dated 4th April, 2007, the petitioner therein who
was initially in job contract and subsequently brought over to
the regular establishment having been appointed against a
substantive post was allowed to be brought within the fold of the
Rules and the GPF Rules with a direction to grant him all
consequential benefits due and admissible.
9. In Sheela Devi (supra), the Apex Court, while dealing with a
matter of similar nature but with reference to the provisions of
the Central Civil Services (Pension) Rules, 1972 concluded that
the employees working on contract basis regularized after at a
// 14 //
later stage, the past service rendered by them as contractual
employees shall be taken into account for the purpose of
pension.
10. Having regard to the case laws discussed hereinbefore and
in view of Rule 18 (6) of the Rules and the clarification of the
State Government in Finance Department dated 4th April, 2007
and carried forward with the circular dated 18th July, 2007
including the contractual employees brought over to regular
establishment within the coverage of General Provident Fund,
the ultimate view of the Court is that the petitioner's case should
have been accordingly dealt with allowing him similar benefits
instead of the order of rejection dated 13th June, 2022. In so far
as, the disposal of SLPs by the Apex Court, are concerned, a
copy of which is annexed to the rejoinder affidavit of the
petitioner, recording the submission of Ms. Dash, learned ASC
for the State that it shall not be a precedent but having regard to
the fact that the same relates to regularization of services and
was affirmed despite a challenge by the State Government, in
the humble view of the Court, it is no relevant vis-a-vis demand
for pension by the petitioner since pleaded. The Court is,
therefore, of the final conclusion that the petitioner, who was
engaged contractually and he having been regularized even
though after 1st January, 2005, for the discussions made
hereinabove, with reference to Page 9 of 9 the circulars of the
Government dated 4th April, 2007 and 18th July, 2007besides
Rule 18(6) of the Rules, the rejection order as per Annexure-9
cannot be sustained in law.
xxx xxx xxx
12. In the result, the writ petition stands allowed. As a necessary
corollary, the impugned order of rejection dated 13th June,
2022 as per Annexure-9 is hereby quashed with a direction to
opposite party No.1 to allow pension to the petitioner as per the
Rules and to disburse all such financial benefits as due and
admissible concluding the exercise as soon as possible
preferably within a period of six weeks from the date of receipt
of a copy of this order."
3. Mr. P.K. Sahoo, learned Addl. Standing Counsel on the other hand
while supporting the impugned order, made his submission relying on
the stand taken by the counter affidavit so filed by Opp. Party No.1 &
2. It is contended that Petitioner was engaged as a Night Watchman on
// 15 //
temporary basis w.e.f. 01.10.1996 vide order dated 03.10.1996 of Opp.
Party No.3 so issued under Annexure-1. It is contended that pursuant to
the order passed by the Tribunal in O.A. No.108 of 2000 under
Annexure-2, no step could be initiated to fill up the post on the regular
basis, even though Government was moved, as the post of Night
Watchman was meants for the employees working in the Job Contract
Establishment of Settlement Organization for their absorption.
Accordingly the post was not filled-up by initiating due recruitment
process.
3.1. It is further contended that pursuant to the subsequent order passed
by the Tribunal in the O.A. No.126 of 2009, though the Tribunal
directed to fill up the post by way of direct recruitment and allow the
Petitioner to continue till such a process is initiated, but such
recruitment could not take place due to imposition of restriction by the
Finance Department.
3.2. However, pursuant to the order passed by this Court in W.P.(C)
No.9216 of 2021, Petitioner was regularized with due absorption in the
post of Night Watchman w.e.f. 23.07.2021 vide order dated 30.07.2021
under Annexure-6. It is contended that after such absorption in the
regular establishment, Petitioner challenging his absorption w.e.f.
23.07.2021 again approached this Court by filing W.P.(C) No.31504 of
// 16 //
2021 and with a prayer to absorb him retrospectively and for his
coverage under the 1992 Rules and 1938 Rules. This Court vide order
dated 07.10.2021 directed Opp. Party No.1 to take a decision on the
Petitioner's claim and the same was rejected vide order dated
17.02.2022 under Annexure-9.
3.3. It is contended that since by the time Petitioner was so absorbed
w.e.f. 23.07.2021, the OCS (Pension) Amendment Rules, 2005 had
already been notified vide Annexure-D/2, Petitioner's regularization
being after 01.01.2005, he is required to be covered under the NPS. It is
further contended that in terms of the provisions contained under Rule
3 and 4 of the amended OCS (Pension) Rules, 1992 as amended by
Finance Department vide Notification dated 17.09.2005, Petitioner's
claim for his coverage under the 1992 Rules and 1938 Rules, is not
entertainable.
3.4. Making all these submissions, learned Addl. Standing Counsel
contended that since Petitioner admittedly was absorbed w.e.f.
23.07.2021 vide order dated 30.07.2021 under Annexure-6, claim of
the Petitioner seeking retrospective regularization w.e.f. 01.10.1996
and for his coverage under 1992 Rules and 1938 Rules, has been
rightly rejected vide the impugned order under Annexure-9, which
requires no interference of this Court.
// 17 //
4. To the submission made by the learned Addl. Standing Counsel,
learned counsel appearing for the Petitioner made further submission
basing on the stand taken in the rejoinder affidavit so filed. It is
contended that since w.e.f.01.10.1996, Petitioner was allowed to
continue as a temporary / ad hoc Night Watchman in the office of Opp.
Party No.3 against a vacant sanctioned post, and the post was never
filled up in terms of the order passed by the Tribunal, Petitioner is
eligible and entitled to get the benefit of regularization
w.e.f.01.10.1996 with all service and financial benefits. Not only that
no such application was made seeking modification of the direction
issued by the Tribunal at any point of time that the recruitment cannot
be made.
4.1. It is also contended that in view of the benefit extended in favour
of similarly situated employees vide order issued under Annexure-10
Series, the ground on which Petitioner's claim has been rejected, is also
not sustainable in the eye of law. It is further contended that since
Petitioner continued as against the vacant post w.e.f. 01.10.1996, which
is not disputed, in order to deprive the Petitioner to get the benefit of
the 1992 Rules and 1938 Rules, Petitioner was deliberately regularized
w.e.f. 23.07.2021 vide order dated 30.07.2021 under Annexure-6.
Petitioner in the view of such continuance against a vacant sanctioned
// 18 //
post w.e.f. 01.10.1996, he is liable to be absorbed w.e.f. 01.10.1996
with extension of his coverage under the 1992 Rules and 1938 Rules
and with quashing of the impugned order dated 17.02.2022 under
Annexure-9.
4.2. It is also contended that for the alleged latches on the part of the
Opp. Parties in not filling up of the post pursuant to the order passed by
the Tribunal on two (2) occasion and allowing the Petitioner to
continue all through w.e.f.01.10.1996 against a vacant sanctioned post,
Petitioner cannot be deprived to get the benefit of retrospective
regularization w.e.f.01.10.1996. It is also contended that Petitioner will
have no grievance, if Petitioner is so regularized w.e.f.01.10.1996 on
notional basis.
4.3. In support of his claim to get the benefit of pension under 1992
Rules and coverage under 1938 Rules, learned counsel appearing for
the Petitioner relied on a decision of the Hon'ble Apex Court in the
case of DS Nakara Vs. Union of India reported in (1983) 1 SCC 305.
Hon'ble Apex Court in Paragraph 15, 16, 32 and 33 of the said decision
has held as follows:-
15. Thus the fundamental principle is that Article 14 forbids class
legislation but permits reasonable classification for the purpose
of legislation which classification must satisfy the twin tests of
classification being founded on an intelligible differentia which
distinguishes persons or things that are grouped together from
those that are left out of the group and that differentia must have
// 19 //
a rational nexus to the object sought to be achieved by the statute
in question.
16. As a corollary to this well-established proposition, the next
question is, on whom the burden lies to affirmatively establish the
rational principle on which the classification is founded
correlated to the object sought to be achieved? The thrust of
Article 14 is that the citizen is entitled to equality before law and
equal protection of laws. In the very nature of things the society
being composed of unequals a welfare State will have to strive by
both executive and legislative action to help the less fortunate in
the society to ameliorate their condition so that the social and
economic inequality in the society may be bridged. This would
necessitate a legislation applicable to a group of citizens
otherwise unequal and amelioration of whose lot is the object of
State affirmative action. In the absence of doctrine of
classification such legislation is likely to flounder on the bed rock
of equality enshrined in Article 14. The Court realistically
appraising the social stratification and economic inequality and
keeping in view the guidelines on which the State action must
move as constitutionally laid down in Part IV of the Constitution,
evolved the doctrine of classification. The doctrine was evolved to
sustain a legislation or State action designed to help weaker
sections of the society or some such segments of the society in
need of succour. Legislative and executive action may
accordingly be sustained if it satisfies the twin tests of reasonable
classification and the rational principle correlated to the object
sought to be achieved. The State, therefore, would have to
affirmatively satisfy the Court that the twin tests have been
satisfied. It can only be satisfied if the State establishes not only
the rational principle on which classification is founded but
correlate it to the objects sought to be achieved. This approach is
noticed in Ramana Dayaram Shetty v. International Airport
Authority of India [(1979) 3 SCC 489, 506 : AIR 1979 SC 1628 :
(1979) 3 SCR 1014, 1034 : (1979) 2 LLJ 217] when at SCR p.
1034 (SCC p. 506), the Court observed that a discriminatory
action of the Government is liable to be struck down, unless it can
be shown by the Government that the departure was not
arbitrary, but was based on some valid principle which in itself
was not irrational, unreasonable or discriminatory.
xxx xxx xxx
32. Having succinctly focussed our attention on the conspectus of
elements and incidents of pension the main question may now be
tackled. But, the approach of court while considering such
measure is of paramount importance. Since the advent of the
Constitution, the State action must be directed towards attaining
the goals set out in Part IV of the Constitution which, when
// 20 //
achieved, would permit us to claim that we have set up a welfare
State. Article 38(1) enjoins the State to strive to promote welfare
of the people by securing and protecting as effective as it may a
social order in which justice -- social, economic and political --
shall inform all institutions of the national life. In particular the
State shall strive to minimise the inequalities in income and
endeavour to eliminate inequalities in status, facilities and
opportunities. Article 39(d) enjoins a duty to see that there is
equal pay for equal work for both men and women and this
directive should be understood and interpreted in the light of the
judgment of this Court in Randhir Singh v. Union of India [(1982)
1 SCC 618 : 1982 SCC (L&S) 119] . Revealing the scope and
content of this facet of equality, Chinnappa Reddy, J. speaking for
the Court observed as under: (SCC p. 619, para 1)
"Now, thanks to the rising social and political consciousness and
the expectations aroused as a consequence, and the forward-
looking posture of this Court, the underprivileged also are
clamouring for their rights and are seeking the intervention of the
court with touching faith and confidence in the court. The Judges
of the court have a duty to redeem their constitutional oath and
do justice no less to the pavement-dweller than to the guest of the
five-star hotel."
Proceeding further, this Court observed that where all relevant
considerations are the same, persons holding identical posts may
not be treated differently in the matter of their pay merely because
they belong to different departments. If that can't be done when
they are in service, can that be done during their retirement?
Expanding this principle, one can confidently say that if
pensioners form a class, their computation cannot be by different
formula affording unequal treatment solely on the ground that
some retired earlier and some retired later. Article 39(e) requires
the State to secure that the health and strength of workers, men
and women, and children of tender age are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength. Article 41 obligates
the State within the limits of its economic capacity and
development, to make effective provision for securing the right to
work, to education and to provide assistance in cases of
unemployment, old age, sickness and disablement, and in other
cases of undeserved want. Article 43(3) requires the State to
endeavour to secure amongst other things full enjoyment of
leisure and social and cultural opportunities.
33. Recall at this stage the Preamble, the flood light illuminating
the path to be pursued by the State to set up a Sovereign Socialist
Secular Democratic Republic. Expression "socialist" was
intentionally introduced in the Preamble by the Constitution
// 21 //
(Forty-second amendment) Act, 1976. In the objects and reasons
for amendment amongst other things, ushering in of socio-
economic revolution was promised. The clarion call may be
extracted:
"The question of amending the Constitution for removing the
difficulties which have arisen in achieving the objective of socio-
economic revolution, which would end poverty and ignorance and
disease and inequality of opportunity, has been engaging the
active attention of Government and the public for some time....
It is, therefore, proposed to amend the Constitution to spell out
expressly the high ideals of socialism ... to make the directive
principles more comprehensive...."
What does a Socialist Republic imply? Socialism is a much
misunderstood word. Values determine contemporary socialism
pure and simple. But it is not necessary at this stage to go into all
its ramifications. The principal aim of a socialist State is to
eliminate inequality in income and status and standards of life.
The basic framework of socialism is to provide a decent standard
of life to the working people and especially provide security from
cradle to grave. This amongst others on economic side envisaged
economic equality and equitable distribution of income. This is a
blend of Marxism and Gandhism leaning heavily towards
Gandhian socialism. During the formative years, socialism aims
at providing all opportunities for pursuing the educational
activity. For want of wherewithal or financial equipment the
opportunity to be fully educated shall not be denied. Ordinarily,
therefore, a socialist State provides for free education from
primary to PhD but the pursuit must be by those who have the
necessary intelligence quotient and not as in our society where a
brainy young man coming from a poor family will not be able to
prosecute the education for want of wherewithal while the ill
equipped son or daughter of a well-to-do father will enter the
portals of higher education and contribute to national wastage.
After the education is completed, socialism aims at equality in
pursuit of excellence in the chosen avocation without let or
hindrance of caste, colour, sex or religion and with full
opportunity to reach the top not thwarted by any considerations
of status, social or otherwise. But even here the less equipped
person shall be assured a decent minimum standard of life and
exploitation in any form shall be eschewed. There will be
equitable distribution of national cake and the worst off shall be
treated in such a manner as to push them up the ladder. Then
comes the old age in the life of everyone, be he a monarch or a
mahatma, a worker or a pariah. The old age overtakes each one,
death being the fulfilment of life providing freedom from bondage.
But here socialism aims at providing an economic security to
those who have rendered unto society what they were capable of
// 22 //
doing when they were fully equipped with their mental and
physical prowess. In the fall of life the State shall ensure to the
citizens a reasonably decent standard of life, medical aid,
freedom from want, freedom from fear and the enjoyable leisure,
relieving the boredom and the humility of dependence in old age.
This is what Article 41 aims when it enjoins the State to secure
public assistance in old age, sickness and disablement. It was
such a socialist State which the Preamble directs the centres of
power -- Legislative, Executive and Judiciary -- to strive to set
up. From a wholly feudal exploited slave society to a vibrant,
throbbing socialist welfare society is a long march but during this
journey to the fulfilment of goal every State action whenever
taken must be directed, and must be so interpreted, as to take the
society one step towards the goal."
4.4. In support of his submission, reliance was also placed to the
decisions of the Hon'ble Apex Court in the case of Jaggo vs. Union of
India & Ors., 2024 SCC OnLine SC 3826; Shripal & Anr. vs. Nagar
Nigam, Ghaziabad, 2025 SCC OnLine SC 221 as well as Dharam
Singh & Ors. vs. State of U.P. & Anr. (Civil Appeal No(s).8558 of
2018 and lastly in the case of Bhola Nath Vs. State of Jharkhand and
Others, 2026 INSC 99.
4.5. View expressed by the Hon'ble Apex Court in the case of Jaggo in
Para-22 to 25 and 27 reads as follows:-
"22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a broader
systemic issue that adversely affects workers' rights and
job security. In the private sector, the rise of the gig
economy has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job
security, and fair treatment. Such practices have been
criticized for exploiting workers and undermining labour
standards. Government institutions, entrusted with
upholding the principles of fairness and justice, bear an
even greater responsibility to avoid such exploitative
// 23 //
employment practices. When public sector entities engage
in misuse of temporary contracts, it not only mirrors the
detrimental trends observed in the gig economy but also
sets a concerning precedent that can erode public trust in
governmental operations.
23. The International Labour Organization (ILO), of which
India is a founding member, has consistently advocated
for employment stability and the fair treatment of
workers. The ILO's Multinational Enterprises Declaration6
encourages companies to provide stable employment and
to observe obligations concerning employment stability
and social security. It emphasizes that enterprises should
assume a leading role in promoting employment security,
particularly in contexts where job discontinuation could
exacerbate long-term unemployment.
24. The landmark judgement of the United State in the
case of Vizcaino v. Microsoft Corporation7 serves as a
pertinent example from the private sector, illustrating the
consequences of misclassifying employees to circumvent
providing benefits. In this case, Microsoft classified
certain workers as independent contractors, thereby
denying them employee benefits. The U.S. Court of
Appeals for the Ninth
Circuit determined that these workers were, in fact,
common-law employees and were entitled to the same
benefits as regular employees. The Court noted that large
Corporations have increasingly adopted the practice of
hiring temporary employees or independent contractors
as a means of avoiding payment of employee benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the work
performed, rather than the label assigned to the worker,
should determine employment status and the
corresponding rights and benefits. It highlights the
judiciary's role in rectifying such misclassifications and
ensuring that workers receive fair treatment.
25. It is a disconcerting reality that temporary employees,
particularly in government institutions, often face
multifaceted forms of exploitation. While the foundational
purpose of temporary contracts may have been to
address
short-term or seasonal needs, they have increasingly
become a mechanism to evade long-term obligations owed
to employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels:
Employees engaged for work that is essential, recurring, and
integral to the functioning of an institution are often labeled as
"temporary" or "contractual," even when their roles mirror those of
// 24 //
regular employees. Such misclassification deprives workers of the
dignity, security,
and benefits that regular employees are entitled to, despite
performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently
dismissed without cause or notice, as seen in the
present case. This practice undermines the principles of natural
justice and subjects workers to a state of constant insecurity,
regardless of the quality or duration of their
service.
• Lack of Career Progression: Temporary employees often find
themselves excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain stagnant in their
roles,
creating a systemic disparity between them and their regular
counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield:
Institutions increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set of exploited
workers with another. This practice not only perpetuates
exploitation but also demonstrates a deliberate effort to bypass the
obligation to offer regular employment.
• Denial of Basic Rights and Benefits:
Temporary employees are often denied fundamental benefits such
as pension, provident fund, health insurance, and paid leave, even
when their tenure spans decades. This lack of social security subjects
them and their families to undue hardship, especially in cases of
illness, retirement, or unforeseen circumstances.
xxxx xxxx xxxx xxxxx
27. In light of these considerations, in our opinion, it is imperative for
government departments to lead by example in providing fair and
stable employment. Engaging workers on a temporary basis for
extended periods, especially when their roles are integral to the
organization's functioning, not only contravenes international
labour standards but also exposes the organization to legal
challenges and undermines employee morale. By ensuring fair
employment
practices, government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to embody.
This approach aligns with international standards
and sets a positive precedent for the private sector to follow,
thereby contributing to the overall betterment of labour practices in
the country."
// 25 //
4.6. Hon'ble Apex Court in the case of Shripal in Para-15, 17 has held as
follows:-
"15. ....... Indian labour law strongly disfavors perpetual daily-
wage or contractual engagements in circumstances where the work is
permanent in nature.
xxxx xxxxx xxxxx xxxxxx
17. Indeed, bureaucratic limitations cannot trump the legitimate
rights of workmen who have served continuously in de facto regular
roles for an extended period."
4.7. Placing reliance on the decision in the case of Jaggo and Shripal,
Hon'ble Apex Court in the case of Dharam Singh, in Paragraph-17 & 18
has held as follows:
"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 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."
// 26 //
4.8. Hon'ble Apex Court in the case of Bhola Nath in Para-13.5, 13.6, 13.8
& 13.9 of the judgment has held as follows:-
"13.5. xxx xxx xxx
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
"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.
xxx xxx xxx
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."
5. Having heard the learned counsel for the Parties and considering the
submission made, this Court finds that Petitioner was engaged as a
temporary Night Watchman in the establishment of Opp. Party No.3
w.e.f. 01.10.1996 vide order dated 03.10.1996 under Annexure-1.
// 27 //
Petitioner was so engaged against the vacant post of Night Watchman
so available in the office of Opp. Party No.3.
5.1. It is also found that on the face of the order passed by the Tribunal
under Annexure-2 and subsequent order passed by the self-same
Tribunal in O.A. No.126 of 2009, the post in question was never filled
up with initiation of any recruitment process and Petitioner all through
was allowed to continue initially as a temporary Night Watchman vide
order under Annexure-1 and as an ad hoc Night Watchman vide order
dated 19.02.2021 under Annexure-3. Pursuant to the order passed by
this Court in W.P.(C) No.9216 of 2021, he was regularized w.e.f.
23.07.2021 against such vacant post of the Night Watchman vide order
dated 30.07.2021 under Annexure-6.
5.2. Since it is not disputed that Petitioner continued as against a vacant
sanctioned post of Night Watchman in the office of Opp. Party No.3
w.e.f. 01.10.1996 and no step was taken either to absorb the Petitioner
or to fill up the post, by the initiating due recruitment process, for such
inaction on the part of the Opp. Parties, Petitioner cannot be held to be
covered under NPS, which was made effective w.e.f. 01.01.2005.
5.3. Not only that since no step was ever taken to fill up the post on
regular basis and Petitioner continued against a vacant sanctioned post
of Night Watchman so available in the office of Opp. Party No.3 w.e.f.
// 28 //
01.10.1996, it is the view of this Court that Petitioner is eligible and
entitled to get the benefit of regularization w.e.f. 01.10.1996, but on
notional basis.
5.4. It is also the view of this Court that on the face of availability of
the vacant post of the Night Watchman in the office of Opp. Party
No.3, Petitioner could not have been allowed to continue as a
temporary / ad hoc Night Watchman till he was absorbed w.e.f.
23.07.2021 vide order dated 30.07.2021 under Annexure-6. It is the
view of this Court that State as a model employer, should not deal with
its employee in such a manner and intentionally delaying the process of
absorption, just to disentitle them to get the benefit of pension under
OCS (Pension) Rues, 1992 and GPF (Odisha) Rules, 1938.
5.5. In view of such long continuance w.e.f. 01.10.1996 against the
vacant sanctioned post of Night Watchman, this Court placing reliance
on the decisions of the Hon'ble Apex Court as cited (supra), is also of
the view that Petitioner is eligible and entitled to get the benefit of his
coverage under the OCS (Pension) Rules, 1992 and GPF (Odisha)
Rules, 1938.
5.6. In view of the aforesaid analysis, this Court while quashing the
impugned order dated 17.02.2022 so issued by Opp. Party No.1 under
Annexure-9, directs Opp. Party No.1 to absorb the Petitioner as against
// 29 //
the post of Night Watchman in the office of Opp. Party No.3
w.e.f.01.10.1996 on notional basis and allow him to be covered under
OCS (Pension) Rules, 1992 and GPF (Orissa) Rules, 1938. This Court
directs Opp. Party No.1 to complete the entire exercise within a period
of two (2) months from the date of receipt of this order.
6. Accordingly, the Writ Petition stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 8th May, 2026/Jyoti
Location: HIGH COURT OF ORISSA
