The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.1790 of 2024 State of Odisha and others Kamala Panda -Versus- …. …. Appellants Respondent Advocates appeared in this case: For Appellants : Mr. Bimbisar Dash Additional Government Advocate For Respondent
Legal Reasoning
: Mr. P.C. Acharya, Advocate CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE MURAHARI SRI RAMAN J U D G M E N T ---------------------------------------------------------------------------------- Date of hearing and judgment: 24th April, 2025 ---------------------------------------------------------------------------------- HARISH TANDON, CJ. 1. This appeal is at the behest of the State assailing the judgment and order of the learned single Judge dated 18th April, 2024 passed in W.P.(C) No.32104 of 2023, by which the prayer for extending the benefit upon regularization of the service was allowed in the following: W.A. No.1790 of 2024 Page 1 of 8 “6.1. In view of the same and placing reliance on the decisions as cited supra, this Court is inclined to quash office order dt.09.06.2023 so passed by Opp. Party No.2 under Annexure-4. While quashing the same, this Court direct Opp. Party No.2 to pass an appropriate order absorbing the deceased employee in the regular establishment against the post in question or by creating a supernumerary post. However, in view of the submission of the learned counsel for the Petitioner that petitioner will not raise any claim to get the retiral dues as due to the deceased employee save and except family pension, this Court directs Opp. Party No.2 to sanction and release family pension in favour of the Petitioner as due and admissible from the date of her entitlement within a period of three (3) months from the date of receipt of this order. Arrear family pension as due and admissible be also released within the aforesaid time period.” 2. The genesis of the dispute can be traced from the fact that the husband of the respondent was initially appointed as an Ayurved compounder/Pharmacist on ad hoc basis on and from 8th May, 1987 but he joined the said post on 13th May, 1987 as would be evident from the service book prepared by the authorities. 3. Indubitably, the husband of the respondent continued to discharge his duty from the date he joined the service but such W.A. No.1790 of 2024 Page 2 of 8 service was not regularized and after attaining the age of superannuation, he was not extended the benefit of the retiral dues. Unfortunately, the said employee died within one month after the date of attaining the age of superannuation. 4. During the life time, the husband of the respondent approached the authorities for regularization of service together with other benefits including pension as admissible in the statutory rules but the same was not attended to by the authorities which constrained the said deceased to file a writ petition being W.P.(C) No.660 of 2023. While disposing of the said writ petition, the direction was passed upon the authority to take a decision on the claim but the authorities did not find any material to regularize the service of the husband of the respondent and proceeded to reject the said application. 5. The order of rejection was further challenged in the writ petition and a plea was taken by the present appellant that the husband of the respondent was appointed against a reserved vacancy, which was never filled up by taking a due selection process till he attained the age of superannuation. It was thus W.A. No.1790 of 2024 Page 3 of 8 submitted that such ad hoc appointee is not entitled to get his services regularized and, therefore, there is no infirmity and/or illegality in the order of the authority in rejecting the prayer of the respondent. 6. On the backdrop of the aforesaid undisputed facts, the learned single Judge proceeded to decide the claim of the respondent and took into account the judgment of the Supreme Court rendered in case of The State of Gujarat & Others v. Talsibhai Dhanjibhai Patel reported in (2022) Live Law (SC) 187, Amarkanta Rai v. State of Bihar and Others reported in 2015 SCC Online SC 214 wherein it is held that the employee who might have been appointed on ad hoc basis but rendered the services for a pretty long time without any intervention of the Court should not be treated indifferently but as a model employer, the State being a welfare State must take a pragmatic view. 7. Even in case of Secretary, State of Karnataka v. Umadevi (3) and others reported in (2006) 4 SCC 1, the Constitution Bench of the Supreme Court in unequivocal term held that the welfare State must take an initiative of formulating a one-time measure to W.A. No.1790 of 2024 Page 4 of 8 regularize the irregular appointees, who have worked more than 10 years from the date of the said judgment without any interim order passed by the Court and the benefit should also be extended. The judgment of the apex Court was taken into consideration in a subsequent judgment rendered in Talsibhai Dhanjibhai Patel (supra), wherein it is held that even if the ad hoc appointee is entitled to the benefits, if he has rendered services for a considerable period of time and as a welfare State, the benefit of the pension cannot be denied. 8. In Amarkanta Rai (supra), the apex Court upon taking all the relevant factors held that once the State has allowed the ad hoc appointee to render services for a considerable period of time without any break or discontinuance, the injustice would be perpetrated upon such ad hoc appointees, if their services are not regularized. 9. The law as enunciated hereinabove leaves no ambiguity in our mind that the husband of the respondent, though appointed on an ad hoc basis on a reserved post but till he attained the age of superannuation, was allowed to render services as there was no W.A. No.1790 of 2024 Page 5 of 8 attempt made by the State to make a regular appointment to the said post. The technicalities should not over-shadow the substantial justice. The moment the technicality is pitted against the substantial justice, the later must prevail. 10. Precisely taking into account the aforesaid proposition of law laid down in the above noted reports, the learned single Judge directed the regularization of the service of the deceased-employee and extend the benefit of the family pension to the respondent herein. However, a plea is taken by the respondent that though the substantial relief has already been granted to the respondent but the learned single Judge did not indicate the date from which the same shall be deemed to have been regularized. Though the respondent has not taken out any cross-objection nor has approached the learned single Judge for a clarification and modification yet, taking into an account the peculiar facts and to render the complete justice to the litigant, we do not find any impediment in acceding to such prayer as the duration of a qualifying service is a determinant factor for quantifying the family pension to the wife of the deceased employee. W.A. No.1790 of 2024 Page 6 of 8 11. In view of the law as above, we do not find there is any infirmity in the ultimate decision taken by the learned single Judge. Although, the substantial reliefs have been given in the writ petition but, effective relief to the effect that the deceased-husband of the respondent shall be deemed to be in service at the substantive post from the date of his joining and such period of service shall be considered as a regular appointee on the said post entitled to all the benefits attributable to the said post at the time of the superannuation, are not expressly granted by the Single Bench. 12. The respondent, however, fairly concedes before the Court that she now abandoned, acquiesced and/or waived her right to get the retiral benefit of the husband admissible on the date of the superannuation and restrict her claim to a family pension. 13. In view of such categorical stand having taken before us, the judgment and order is modified to the extent that for the purpose of computation of the qualifying period of service the same shall reckon from 13th May, 1987 and since the deceased- employee demit the office on 31st January, 2023, such period W.A. No.1790 of 2024 Page 7 of 8 would be taken into account for the purpose of ascertaining the quantum of the family pension. 14.
Decision
Except to the extent is above, the appeal is disposed of and connected applications, if any, are also disposed of. (Harish Tandon) Chief Justice (M.S. Raman) Judge S. Behera A. Nanda Signature Not Verified Digitally Signed Signed by: ANISHA NANDA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Apr-2025 12:17:08 W.A. No.1790 of 2024 Page 8 of 8