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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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:

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"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

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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.

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(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

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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

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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

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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.

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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

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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 //

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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 //

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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

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Page 21 of 29

(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

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Page 22 of 29

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 //

Page 23 of 29

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 //

Page 24 of 29

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 //

Page 25 of 29

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 //

Page 26 of 29

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 //

Page 27 of 29

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 //

Page 28 of 29

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 //

Page 29 of 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 8

th

May, 2026/Jyoti