Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.693 of 2025 In the matter of an Appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948 *** 1. State of Odisha Represented through The Principal Secretary to Government Housing and Urban Development Department 3rd Floor, Kharavel Bhawan Bhubaneswar, District: Khordha. 2. Director, Municipal Administration And Ex-Officio Additional Secretary to Government Housing and Urban Development Department Bhubaneswar District: Khordha … Appellants (Opposite party Nos.1 and 2 in writ petition) -VERSUS- 1. Radha Krisna Dash Aged about 60 years Son of Nityananda Dash WA No.693 of 2025 Page 1 of 96 At: Kaibalya Vihar PO: Nuabazar District: Cuttack; Junior Assistant Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. ... Respondent. (Petitioner in writ petition) 2. Commissioner Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. 3. Mayor, Cuttack Municipal Corporation1 At/P.O.: Choudhury Bazar District: Cuttack. 4. Dwarikanath Nayak now working as Senior Assistant under Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. 5. Dhirendra Kumar Lenka Junior Assistant (Retd.) Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. 1 The appellants made “Mayor, Cuttack Municipal Corporation” as party to the writ appeal, though the learned Single Judge vide Order dated 04.02.2019 passed in W.P.(C) No.16335 of 2018 following order: “*** Dr. J.K. Lenka, learned counsel for the petitioner states that the petitioner has no grievance against opposite party No.4 and therefore, he wants to delete the name of opposite party No.4 from the cause list. In view of the above, opposite party No.4 be deleted from the cause list and opposite party No.5 to 8 be treated as opposite party Nos.4 to 7.” WA No.693 of 2025 Page 2 of 96 6. Udayabhanu Mishra Senior Assistant (Retd.) Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. 7. Rashmi Ranjan Singh Senior Assistant (Retd.) Cuttack Municipal Corporation At/P.O.: Choudhury Bazar District: Cuttack. ... Pro forma Respondents. (Opposite party Nos.3 to 7 in writ petition) Counsel appeared for the parties: For the Appellants : Mr. Saswat Das, Additional Government Advocate For the Respondent No.1 Dr. Jitendra Kumar Lenka, : Pratap Kumar Behera, Dr. Satyapriya Dash, Advocates For the other Respondents: None P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 15.10.2025 :: Date of Judgment :20.11.2025 J UDGMENT WA No.693 of 2025 Page 3 of 96 MURAHARI SRI RAMAN, J.— The mighty State-Municipal Administration has preferred this appeal questioning propriety of the decision taken by a learned Single Judge of this Court vide Judgment dated 29.10.2024 delivered in W.P.(C) No.16335 of 2018 apparently in order to thwart extension of pensionary benefits to the respondent, who worked in the Cuttack Municipal Corporation since 1990 on daily wage basis till his absorption in service with effect from 14.08.2015 instead of initial date of engagement, i.e., 01.11.1990, ignoring to acknowledge his yeomen service rendered to the Organisation for more than 25 years. 1.1. This intra-Court appeal is directed against the Judgement dated 29.10.2024 rendered by a learned Single Bench in an application, bearing W.P.(C) No.16335 of 2018, under Articles 226 and 227 of the Constitution of India with the following prayer(s): “Under these circumstances, the Appellants most humbly pray that this Hon‟ble Court be graciously pleased to Admit this Appeal, call for the records and after hearing the parties, be pleased to set-aside the impugned judgment dated 29.10.2024 passed by the Hon‟ble Single Judge in WP(C) No.16335 of 2018 under Annexure-2 in the interest of justice; WA No.693 of 2025 Page 4 of 96 And further be pleased to pass such other order/orders as the Hon‟ble Court deem fit and proper in the facts and circumstances of the case; And for this act of kindness the Appellants shall as in duty bound ever pray.” Facts culled out from the record: 2. Having joined in the post of Junior Assistant on 01.11.1990 on daily wage basis under the Cuttack Municipality (presently, Cuttack Municipal Corporation), he was allowed to work till 31.03.1992 along with others by virtue of Office Order dated 04.03.1992 issued pursuant to Council Resolution dated 15.02.1992. By issue of Office Order dated 30.03.1996 he was allowed enhanced allowance in pursuance of the Agreement made by the Management with Cuttack Mehentar Sangh and Cuttack Municipal Corporation. 2.1. The Director, Municipal Administration vide Letter dated 29.10.1996 instructed Executive Officer of all Urban Local Bodies to sponsor applications of such Junior Assistants who were irregularly appointed by the Council between 10.09.1982 to 30.06.1992. Since name of the respondent did not find place in the list furnished, nevertheless the case of his junior (NMR) was considered vide Letter dated 22.04.1998, he made application addressed to the Director, Municipal Administration and WA No.693 of 2025 Page 5 of 96 Executive Officer of the Corporation. Selection test being conducted, 148 in-service candidates, engaged between 15.09.1982 and 30.06.1992, have been selected and were allowed to draw regular scale of pay. They were shown in the seniority list from the date of their initial engagement vide Order No.LFS (SB) 4/95 (Pt.)— 16998/HUD, dated 17.05.1999. 2.2. It is asserted that though the respondent Nos.4 and 7 (Dwarikanath Nayak and Rashmi Ranjan Singh) did not face test held on 28.09.1997, their services have been regularised with seniority. Subsequently, 18 other similarly situated employees joined later to the respondent have been regularised. Though certain juniors have been regularised in service, the case of the petitioner has not been considered. 2.3. Since no heed to his grievance was paid by the authority concerned, the respondent filed writ petition, O.J.C. No.8928 of 1999, which was disposed of by an Order dated 27.01.2009 with a direction to the authorities to consider the representation. The said representation came to be rejected by the authority on the plea that “The Cuttack Municipal Corporation did not sponsor the name of the petitioner to this Department [Housing and Urban Development Department]. Therefore, this Department has no scope at this stage to regularise the WA No.693 of 2025 Page 6 of 96 services of the petitioners as requested in their representation”. Aggrieved thereby, a writ petition, W.P.(C) No.15134 of 2009, being filed, this Court observed vide Order dated 06.07.2015 as follows: “Considering the contentions raised by the learned counsel for the parties and on perusing the material available on record, it appears that the name of the petitioner has been duly recommended to the State Government for regular absorption vide Annexures-8 and 11 as he was rendering service during the period from 10.09.1982 to 30.09.1992. Without considering such documents, the impugned order has been passed in Annexure-13 by stating the reason that the Cuttack Municipal Corporation has not recommended the case of the petitioner, which is an outcome of non- application of mind by the State authorities. At the same time, similar question came up for consideration before this Court referred to supra wherein this Court directed to regularise the services of the petitioner at par with his juniors. In that view of the matter, the impugned order dated 14.09.2009 vide Annexure-13 is quashed and the matter is remitted back to the authority to reconsider the case of the petitioner on the basis of the recommendation made vide Annexure-8 and 11 in the light of the judgments referred to supra2. ” 2.4. Though counterparts and juniors were considered to be regularised in service with the date of initial engagement 2 Ashok Kumar Prusty Vrs. State of Odisha, 2013 (II) OLR 451; Gajendra Prasad Behera, W.P.(C) No.5727 of 2005, disposed of on 27.03.2014; Kailash Chandra Maharana Vrs. State Odisha, W.P.(C) No.20298 of 2013, disposed of on 08.05.2015. WA No.693 of 2025 Page 7 of 96 and placed in the seniority list, the petitioner was absorbed in the regular post of Junior Assistant under the Local Fund Cadre by Office Order No.20632-HUD- LFS-HR-10/2014/HUD, dated 14.08.2015 of the Housing and Urban Development Department, on the recommendation of the Selection Board constituted under Rule 7 of the Odisha Local Fund Service Rules, 1975. Accordingly Office Order dated 25.08.2015 was issued by the Cuttack Municipal Corporation indicating that the petitioner is “absorbed in regular post of Junior Assistant under Local Fund Service Cadre in the scale of pay Rs.5,200/- - Rs.20,200/- with Grade Pay Rs.1,900/- with effect from 14.08.2015”. Protesting the effective date so assigned for reckoning regularisation in service, representation dated 09.06.2017 was submitted before the Director, Municipal Administration, citing that non- sponsoring of the name of the petitioner gave rise to move writ petition(s) and the Order dated 06.07.2015 passed in W.P.(C) No.15134 of 2009 though clearly reflected that the refusal of the Government to regularise the service of the respondent in the similar manner by which his juniors and couterparts were absorbed in service gave rise to direction to reconsider the case of petitioner, the same has not been followed while fixing the effective date for absorption and placing the respondent at appropriate stage in the seniority list. WA No.693 of 2025 Page 8 of 96 2.5. After much persuasion and submitting further representations, the Cuttack Municipal Corporation in its Meeting dated 14.11.2017 passed resolution in favour of the respondent, wherein it was decided that the respondent, working since 01.11.1990 efficiently, being engaged between 10.09.1982 and 30.06.1992, his service was required to be regularised inasmuch as other employees who joined after the petitioner have been regularised by virtue of Housing and Urban Development Department communication vide Letter dated 17.05.1999. Therefore, the period spent by the respondent is to be computed for the purpose of pension. Accordingly, a suggestion has been made to the Housing and Urban Development Department vide communication dated 07.02.2018 by stating thus:
Legal Reasoning
“As regards the claim of Sri Dash for regularisation of his service from the date of his initial entry, i.e., 01.11.1990 and his nature of duties being clerical as ascertained from the source of official records, the case of Shri Dash may be considered on the same standing as his junior counterparts namely Dhirendra Kumar Lenka and other Udayabhanu Mishra (both Junior Assistants) have been allowed by the Government to get their services regularised from their initial entry with pensionary benefits as recruitees to the post during 15.09.1982 to 30.06.1992 period as per Government in Housing and Urban Development Department Order No.LFS 16998/HUD dated 17.05.1999 (Serial Nos.136 and 137) and accordingly the seniority of Sri WA No.693 of 2025 Page 9 of 96 Dash may be counted above the place of his junior counterpart Sri Lenka and Sri Mishra as per facts above.” 2.6. Such suggestion/recommendation has been turned down by the Director, Municipal Administration vide
Decision
Order No.12164-HUD-LFS-OP-33/17/HUD, dated 17.05.2018 by citing reason that “his name has not been sponsored by the Cuttack Municipal Corporation, Cuttack at that time”. 2.7. Questioning propriety and legality of said Order dated 17.05.2018 of Director, Municipal Administration, the petitioner has filed the writ petition, with the following prayer(s): “In the circumstances, the petitioner, therefore, most humbly prays that your Lordship‟s would be graciously pleased to admit the writ application and to issue rule NISI calling to the opposite parties to show cause as to: a) Why the order dated 17.05.2018 passed by the Opp. Party No.2 atAnnexure-21 will not be declared illegal, arbitrary and discriminatory and quash the said order dated 17.05.2018. b) Why the Opp. Party Nos.1 to 3 should not be directed to regularize the service of the petitioner against the post of Junior Assistant from the date 17.05.1999, the date on which junior persons (opposite party Nos.5 to 8) and others have been regularized with seniority and all financial benefits as due and admissible be extended to the petitioner WA No.693 of 2025 Page 10 of 96 by modifying 14.08.2015 at Annexure-15. the regularization order dated c) Declare that the petitioner is entitled to get pension as per old Orissa Local Fund service (Pension) Rules, 1980 by counting the said NMR/DLR service into consideration and GPF deduction as has been made applicable to CMC employees and extended to private opposite parties junior to the petitioner be extended to the petitioner. And if the opposite parties fail to show cause or sufficient cause the rule be made absolute; And issue any other appropriate order / direction which would afford complete relief to the petitioner; And for this act of kindness, the petitioner as in duty bound shall ever pray.” The present writ appeal: 3. Upon appreciation of evidence available on record and having regard to Secretary, State of Karanataka Vrs.