In these appeals, the State of Odisha has challenged the decision of the Orissa High Court's Division Bench, which dismissed its writ appeals due to excessive delay in filing them. ...
2025 INSC 259 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
@ SPECIAL LEAVE PETITION (CIVIL) NO.2146 OF 2024
STATE OF ODISHA & ORS. …APPELLANT(S)
Versus
SUDHANSU SEKHAR JENA …RESPONDENT(S)
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CIVIL APPEAL NO. OF 2025
@ SPECIAL LEAVE PETITION (CIVIL) NO. 4655 OF 2024
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J U D G M E N T
SUDHANSHU DHULIA, J.
1.Delay condoned. Leave granted.
2.In all these appeals which are before this Court, the State of
Odisha has challenged the order of the Division Bench of the
Orissa High Court by which their Writ Appeals were dismissed
due to inordinate delay in filing of Writ Appeals. Even this
Court had earlier dismissed a few Special Leave Petitions on the
49
same dispute, which were belatedly filed even before this Court.
All the same, we are now examining the cases on its merits
considering the importance of the matter(s). Nevertheless, the
casual manner in which the State authorities, particularly the
concerned department of the State and the Land Records office
Surveys Office have handled the matters is a matter of concern.
3.It is not a case concerning a few employees, rather it affects a
large number, and in turn, the State Exchequer. It is for this
reason that we were persuaded to look into these matter(s),
although initially, we were not inclined to interfere, considering
the lethargic approach of the State in pursuing these matters,
and the inordinate delay caused, which was never explained in
any satisfactory manner. The State though kept filing one
Special Leave Petition after another before this Court, not in
one go but one after another, most of them belatedly, to
complete a mere formality. For this reason, many of these
petitions have been dismissed on the ground of delay itself as
stated earlier, as Courts do not come to rescue those who sleep
over their rights. Be it the State. The liability of the State on
this issue will be addressed towards the end. Now, since we are
taking up these matters, what will be the fate of the already
50
dismissed petitions after our determination, we will address at
the end.
4.In the State of Odisha, apart from regular employees who are
working on sanctioned posts in various departments of the
State, there are also a large number of employees, who were
working as ‘Job Contractors’, who are mainly engaged for
purposes of survey and preparation of maps and for the
purposes of consolidation of land holdings etc. Their services
were not pensionary services and thus even when they had put
in long years of service as Job Contractors their services were
not counted for pensionary benefits, and they were not given
any pension post their retirement. The Rules which were
applicable in the State of Odisha at the relevant point of time
with which we are concerned are known as Odisha Civil
Services (Pension) Rules, 1992 (hereinafter referred to as
“Odisha Pension Rules, 1992”).
5.Then a case came up before the Division Bench of the Orissa
High Court, i.e. Settlement ClassIV Job Contract Employees
Union, Balasore v. State of Orissa & Ors. (O.J.C
No.2147/1991) (hereinafter “Job Contract Employees
Union”), which was decided on 24.03.1992. The High Court
considered the nonpayment of pension to Job Contractors as
51
an unfair practice and even violative of Article 14 of the
Constitution of India. Many of the Job Contractors were
subsequently regularised in service but in most cases, this
happened towards the end of their service where these
employees had not completed the mandatory period of
pensionable service which was 10 years. Hence, the Job
Contractors though regularised in service before their
retirement, were still not entitled for pension. The High Court in
the said judgment said as under:
“13. … This apart, for the purpose of calculating the
pensionary benefit, so much of their earlier service
period shall be reckoned, even if there had been
breaks in their employment, so as to make them
eligible for pension. The necessity of giving this
direction has been felt because, if service rendered
after regularisation alone shall be counted for
pensionary benefit, most of the present incumbents
would be denied the same, because to earn pension,
ten years minimum service is necessary, which most
of the incumbents at hand would not put in after
regularisation as they would retire before completing
this period having been appointed two decades
back.”
The State of Odisha subsequently published an Office
Memorandum dated 12
th
December, 1997 where it repeated what
has been said by the High Court in its Division Bench Judgment,
while counting a part of the service of Job Contractors for grant of
pension:
52
“2. According to Finance Department Resolution No.
22764F, dated the 15
th
May 1997, the job contract
employees appointed prior to the 12
th
April 1993
(after which there is a ban for engagement of such
employees) under the administrative control of
different Departments can be brought over to the
posts created under regular/pension establishment
after completion of 10 years, service as jobcontract
employees subject to fulfilment of certain conditions
and stipulations outlined therein. According to the
provisions contained in the said Office Memorandum,
the date of regularisation shall be reckoned as the
first appointment to the service for pension and other
benefits. It has come to the notice of the Government
that some of the jobcontract employees are absorbed
under the regular establishment almost towards the
end of their service and become ineligible to get the
pensionary benefits due to length of regular
Government service in pensionable establishment.
This has caused hardship to such type of employees.
3. The Hon’ble High Court of Orissa in their judgment
dated the 24
th
January, 1992 in O.J.C. No. 2147/91
directed that ‘for the purpose of calculating the
pensionary benefit, so much of their service period
shall be reckoned, even if there had been breaks in
their employment, so as to make them eligible for
pension’. The Hon’ble Orissa Administrative
Tribunal have also in their judgment in O.A. No. 1545
(C)/96 have categorically directed to count that much
period of jobcontract service of the employees which
will make them eligible for pensionary benefits.
4. After careful consideration of the matter, State
Government have been pleased to decide that for the
purpose of pensionary benefits only, so much of their
jobcontract service period shall be added to the
period of qualifying service in regular establishment
as would render them eligible for pension. Addition
53
of that portion of jobcontract service shall not be
counted for calculation of gratuity.”
Thereafter, in the year 2001, an amendment was finally brought
in the Odisha Pension Rules, 1992 wherein subRule 6 was added
to Rule 18 of the said Rules, which reads as under:
“(6) Notwithstanding anything contained in clause (i)
& (iii) of subrule (2), a person who is initially
appointed in a job contract establishment, and is
subsequently brought over to the post created under
regular/pensionable establishment, so much of his
job contract service period shall be added to the
period of his qualifying service in regular
establishment and would render him eligible for
pensionary benefits.”
1
The judgment of Orissa High Court, the subsequent Circular of
the Government and then the amended Rules, all three gave
pensionary benefit to employees who were Job Contractors
earlier, but provided that only such period of their service as
‘Job Contractors’ will be counted for pensionary benefits as was
sufficient to entitle them for pension. The claim of Job
Contractors for considering the entire period of their service for
calculation of their pension was negated and only limited years
of service was to be counted in terms of the above, which would
1 Vide Finance Department Notification No.45856/F., dt.01.09.2001.
54
suffice for their entitlement for pension. These provisions were
never challenged before any court.
6.All the same, on 21.10.1994, the Orissa Administrative Tribunal
in Bhagaban Pattnaik v. State of Orissa (T.A No.11/1993),
on a total misinterpretation and reading of Job Contract
Employees Union (Supra) case, held that the entire period of
Job Contract Employment should be considered for calculation
of pension. This ruling was followed by the Tribunal when it
ordered inclusion of entire period of Job Contract Employment
in calculation of pension in Nityanand Biswal v. State of
Orissa & Ors. [O.A No.3020(C)/2003].
The State of Odisha unsuccessfully tried to challenge
these decisions of the Tribunal before the High Court and this
Court. Clearly, the Tribunal had misinterpreted the ratio of Job
Contract Employees Union case. We will deal this aspect
later.
7.All the same, the same Tribunal in its later decisions such as in
All Orissa Settlement and Land Consolidation Non
Gazetted Technical Officers Association v. State of Orissa
& Ors. [O.A No.3665(C) of 2001] and connected cases on
25.03.2011, considered the amended SubRule 6 of Rule 18 of
Odisha Pension Rules, 1992 along with the judgment of the
55
Orissa High Court in Job Contract Employees Union (Supra)
and dismissed the claim of the Association for inclusion of the
entire Job Contract employment period while calculating
pension.
8.Following the principle laid down in Job Contract Employees
Union (Supra), another Division Bench of the Orissa High
Court in State of Orissa v. Nityanand Das & Ors. [W.P(C)
No.11503/2008] upheld the view of the State and dismissed
other such similar claims. Thereafter, learned Single Judge of
Orissa High Court in Judhistir Padhy v. State of Odisha &
Ors. [WPC (OAC) No. 2276/2012] again dismissed the claim of
similarly situated persons, although the State Government was
directed to consider if any further concession can be made to
the employees.
In compliance with the said direction, the State Government
once again considered the question whether the entire service
can be counted towards calculation of pensionary benefit and it
was again turned down by a speaking order, dated 02.07.2022.
This order has never been challenged by any employee before
any Court. Thereafter, in Chintamani Panda v. State of
Odisha & Ors. [W.P.C (OAC) No.3741/2015] and Pitambar
56
Hota v. State of Odisha [W.P.C (OAC) No.2622/2015] , the
Orissa High Court again rejected a similar claim of the
employees relying on Judhistir Padhy (Supra).
9.In the present batch of cases, the learned Single Judge of the
High Court relied upon the judgment of the Tribunal in
Nityanand Biswal (Supra) and ordered that the entire service
period be counted for calculation of pension of Job Contract
employees. The writ appeals were filed belatedly by the State
and were dismissed on the grounds of latches.
10.We are totally in agreement with the submissions made by
learned Senior Advocate, Shri P.S. Patwalia, that the order of
the learned Single Judge cannot be sustained. Moreover, as
stated at the outset, the Division Bench Judgment dismissed
the Writ Appeals of the State on the first day itself, undoubtedly
on the grounds of delay. Had the Division Bench given them an
opportunity, the State would have explained the entire legal
position and the exfacie anomaly in the order of the Single
Judge.
11.At this stage, we must put on record the distinction between
workcharged employees and job contractors. Although, this
point was never argued before this Court by any of the two
parties, we must nevertheless in all fairness state the law as it
57
stands today for workcharged employees, as distinct from job
contractors.
12.There are judgments of this Court which have directed that the
entire service of a workcharged employee has to be counted for
pensionary benefits, once such an employee is regularised in
service. The reference here would primarily be to a three Judge
Bench decision of this Court in Prem Singh vs. State of Uttar
Pradesh and Others (2019) 10 SCC 516 which has relied on
two earlier decisions of this Court and has held that once work
charged employees are regularised in service, their entire period
of service in a workcharged establishment has to be counted
for pensionary benefits. But then, that was said by this Court
in context of service rules and regulations relating to Punjab,
Uttarakhand and finally, Uttar Pradesh [in Prem Singh
(Supra)]. The Rules though did not provide for pensions to
such employees. Although, in a recent two Judge Bench
decision, this Court in Uday Pratap Thakur and Another vs.
The State of Bihar and Others (2023) SCC OnLine SC 527 ,
while denying the benefit of entire period of service (as work
charged employees) to these employees for calculation of
58
pension, this Court had held that the ruling of the three Judge
Bench is in an entirely different context and stated as under:
“22. Insofar as the submission on behalf of the
appellants that their entire services rendered as
work charged should be considered and/or
counted for the purpose of pension/quantum of
pension is concerned, the same cannot be
accepted. If the same is accepted, in that case, it
would tantamount to regularizing their services
from the initial appointment as work charged. As
per the catena of decisions of this Court, there is
always a difference and distinction between a
regular employee appointed on a substantive post
and a work charged employee working under
work charged establishment. The work charged
employees are not appointed on a substantive
post. They are not appointed after due process of
selection and as per the recruitment rules.
Therefore, the services rendered as work charged
cannot be counted for the purpose of
pension/quantum of pension. However, at the
same time, after rendering of service as work
charged for number of years and thereafter when
their services have been regularized, they cannot
be denied the pension on the ground that they
have not completed the qualifying service for
pension. That is why, the service rendered as
work charged is to be counted and/or considered
for the purpose of qualifying service for pension,
which is provided under Rule 5(v) of the Rules,
2013.
23. Now, insofar as the reliance placed upon the
decision of this Court in the case of Prem
Singh (supra) by the learned counsel appearing on
behalf of the appellants is concerned, the reliance
placed upon the said decision is absolutely
misplaced. In the said case, this Court was
considering the validity of Rule 3(8) of the U.P.
59
Retirement Benefit Rules, 1961, under which the
entire service rendered as work charged was not
to be counted for qualifying service for pension. To
that, this Court has observed and held that after
rendering service as work charged for number of
years in the Government
establishment/department, denying them the
pension on the ground that they have not
completed the qualifying service for pension
would be unjust, arbitrary and illegal. Therefore,
this Court has observed and held that their
services rendered as work charged shall be
considered/counted for qualifying service. This
Court has not observed and held that the entire
service rendered as work charged shall be
considered/counted for the quantum of
pension/pension. 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.”
13.In our respectful opinion, the above interpretation by the two
Judge Bench of this Court regarding the three Judge Bench
decision in Prem Singh (supra) does not appear to be correct
as the three Judge Bench has been quite unambiguous in
asserting that the entire period of service of the workcharged
employees has to be counted for pension.
14.Be that as it may, we are still unable to grant the same relief to
the respondent(s) as has been given to the workcharged
employees by this court and as indeed was their prayer before
the High Court and also before this Court. The reason being
that in the Odisha Pension Rules 1992, a clear distinction has
60
been made between the workcharged establishment and job
contract establishment. In order to keep a proper perspective,
we need to refer to Rule 18 of the above rules which is as
follows:
“18. Conditions subject to which service qualifies
(1) Service does not qualify for pension unless it
is rendered in a pensionable establishment /post.
(2) The entire continuous temporary or
officiating service under Government without
interruption in the same post or any other post,
shall count for the purpose of pension in respect of
all categories of Government servants except in
the following cases, namely:
(i) Period of service in a nonpensionable
establishment;
(ii) Period of service in the workcharged
establishment;
(iii) Period of service paid from contingencies;
(iv) Where the employee concerned resigns and
is not again appointed to service under
Government or is removed/dismissed from
public service;
(v) A probationer who is discharged from service
for failure to pass the prescribed test or
examination;
(vi) Reemployed pensioner, Government
servants engaged on contract and Government
servants not in whole time employment of
Government;
(vii) Service paid from Local Fund or Trust Fund;
61
(viii) Service in an office paid by fees whether
levied by law or under authority of the
Government or by Commission; and
(ix) Service paid out of the grant in accordance
with Law or Custom.
(3) Notwithstanding anything contained in
clauses (i) and (ii) of subrule (2) a person who
is initially appointed by the Government in a
workcharged establishment for a period of
five years or more and is subsequently
appointed to the same or another post in a
temporary or substantive capacity in a
pensionable establishment without
interruption of duty, the period of service so
rendered in workcharged establishment
shall qualify for pension under this rule.
(4) Notwithstanding anything contained in sub
rule (1) Government, may, by general or special
order, prescribe any class of service or post which
were previously born under workcharged
establishment or paid from contingencies to be
pensionable.
(5) Notwithstanding anything contained in sub
rules (1) and (2) in case of a Government servant
belonging to Government of India or other State
Government on his permanent transfer to the
State Government the continuous service rendered
by him under pensionable establishment of
Government of India or any other State
Government, as the case may be, shall count as
qualifying service for pension.
(6) Notwithstanding anything contained in
clause (i) & (iii) of subrule (2), a person who
is initially appointed in a job contract
establishment and is subsequently brought
over to the post created under regular/
pensionable establishment, so much of his
62
job contract service period shall be added to
the period of his qualifying service in regular
establishment and would render him eligible
for pensionary benefits. (Vide Finance
Department Notification No.45865/F.,
dt.01.09.2001)”
(Emphasis provided)
15.As stated earlier, there is a clear distinction between the
employees who are in workcharged establishment vis
àvis
those who are in job contract establishment. The distinction
becomes obvious from a bare perusal of subRules 3 and 6 of
Rule 18 of the Odisha Pension Rules, 1992 where it is given
that workcharged employees who have worked in the
establishment for a period of five years or more without
interruption and are subsequently appointed to the same or
another post in temporary or substantive capacity in a
pensionable establishment, the period of service rendered by
him/her in a workcharged establishment shall qualify for
pension under the Odisha Pension Rules, 1992
2
. Compare this
with the provision relating to job contract establishment
3
for
whom it has been specifically stated that in case of a job
contract employee, after he/she is brought in pensionable
2 SubRule (3) of Rule 18
3 SubRule (6) of Rule 18
63
establishment, only that much period as job contract service
shall be added to regular service as would make him qualify or
eligible for pensionary benefits.
16.Again, as we have already stated in the preceding paragraphs,
these Odisha Pension Rules, 1992 or the distinction under the
law have not been challenged before any Court. As we have
already stated, this was also the point which was never even
mentioned before this Court, leave aside any argument being
made by any of the parties in this regard. We are, therefore, at
a loss to examine as to whether the work the two are actually
performing is similar or not? Therefore, we are not in a position
to determine whether the classification itself between the work
charged establishment and job contract establishment is
artificial or an unequal classification to make it violative of the
Article 14 of the Constitution of India. Though, we may,
however, mention at this stage that the work charged
employees are governed by the Orissa Work Charged Employees
(Appointment and Conditions of Service) Instructions, 1974
which are issued by the General Administration Department of
the State Government which defines such workcharged
establishment as follows:
“2(1)(q) “Workcharged establishment” means
an establishment where the pay and allowances
64
of the employees are charged to the item of work
for which they are employed.”
(Emphasis provided)
17.On the other hand, employees in the job contract establishment
are associated with survey and settlement and map publication
as well as consolidation operations in the State and their
service conditions are governed by the Consolidation Manual
issued under Orissa Consolidation of Holdings and Prevention
of Fragmentation of Land Act, 1972.
18.As we have already stated above, we are not in a position to give a
finding as to whether the distinction between the two is
artificial, being only a difference of nomenclature, and also
whether effectively, they both are performing regular work, for
the reason that no arguments have been made by any side on
this aspect. We, therefore, leave this aspect open.
19.Presently, in the cases before us, and for reasons which have
already given above, considering the facts and circumstances of
the case, these appeals are hereby allowed.
20.Having made the above determination, we also feel that it is our
duty to bring on record the extreme carelessness and lethargic
manner in which the State has been pursuing these cases, both
in the High Court and before this Court. The delay caused by
them is inexcusable. Nevertheless, we have heard these matters
for reasons we have already stated in the preceding paragraphs
65
in the earlier part of this judgment. All such cases, which were
belatedly filed, both before the High Court in Appeal and then
before this Court as Special Leave Petitions, are hereby set
apart from the rest, only for the purpose of payment of costs.
Consequently, in all such cases the State shall pay an amount
of Rupees One Lakh Fifty Thousand, to the employee
concerned. This amount shall be deposited in the account of
the employees, or as the case might be, within a period of four
weeks from today. This order shall not be made effective till the
above amount is deposited in the account of each of such
employees.
21.Due to the delay in filing of Special Leave Petitions some petitions
were dismissed earlier as we have stated in the preceding
paragraphs. Now, in terms of our order here, the State may file
its review, within four weeks from today.
22.Interim orders, if any, stand vacated.
23.All pending application(s), if any, is/are disposed of.
…………………………………….J.
[SUDHANSHU DHULIA]
…….……………………………….J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
FEBRUARY 21, 2025
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