p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20153 of 2019 Pabitra Mohan Sahu & others …. Petitioners Mr. Manoj Kumar Mishra, Senior Advocate -Versus- SState of Odisha & others …. Opposite Parties Ms. Babita Kumari Sahu, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING:19.02.2026 DATE OF JUDGMENT:29.05.2026 1. Instant writ petition is filed by the petitioners for a direction to the opposite parties to regularly absorb them with effect from the respective dates after completion of six years of service and not on and from 25th January, 2019 and accordingly, to fix inter se seniority in the cadre as per the merit/panel list maintained by the Engineer-in-Chief (Civil) Odisha and panel list prepared by the Government in PR & DW Department and further to grant all consequential service and financial benefits in their favour on the grounds stated. 2. In fact, the petitioners assail the action of the opposite parties in not following the merit/panel list prepared and maintained by the Engineer-in-Chief (Civil), Odisha and of the concerned Department and for not regularizing them as Junior Engineers in terms of the resolution dated 22nd September, 2008 and to declare the exercise as illegal, arbitrary, discriminatory and opposed to the settled principles p. 2 of law besides being in violation of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. It is alleged that due to the lackadaisical approach of the authorities concerned, others who are below the petitioners in the merit/penal list have been regularly absorbed before them, who as a result, lost their seniority, hence, therefore, a direction to the opposite parties is necessary towards refixation of inter se seniority in the cadre in terms of the panel lists maintained by the Engineer-in- Chief (Civil), Odisha and by the Government in PR & DW Department thereby facilitating their absorption retrospectively in the regular cadre from the date of completion of six years of service and consequentially, to grant them all such service benefits admissible as per rules. 3. The brief facts of the case are as follows. In the year 1991, the Government in GA Department issued a resolution dated 3rd April, 1991 for employment of Diploma Engineers in different Government Department/Undertakings/Institutions by giving them appointments as Junior Engineers against sanctioned posts and accordingly, a Committee was constituted for empanelment of the names of diploma holders in Civil and Electrical Engineering and as such, a list was prepared as per the marks secured and on the basis of merit and seniority. As is further pleaded, the resolution (supra) stipulated that all the appointments in the Govt. Department/Undertakings/Institutions are to be made from the panel of candidates maintained by the Committee. Subsequently, the Government issued resolutions from time p. 3 to time and finally on 2nd February, 2000, the GA Department reconstituted the Committee with the Engineer-in-Chief (Civil), Odisha as its Chairman for sponsoring the names of the diploma holders from the merit/panel list for appointment as Junior Engineers in the cadre. 3.1. After completion of diploma course in Civil Engineering, the petitioners were enlisted in the panel/list maintained by the Committee of Chief Engineers as per the marks secured and on the basis of merit, whereafter, in the year 2005, a meeting was held by the Development Commissioner-cum- Additional Chief Secretary on 27th January, 2005 with regard to deployment of Junior Engineers in different Departments including PR & DW Department considering its requirement with the workload and in the meanwhile, the National Food For Work Programme (NFFWP) was launched in 199 Blocks of 18 Districts in the State and it was decided to engage one Junior Engineer on contractual basis in each of the Blocks under the DRDAs to help the PRIs to utilize additional allocation of funds and for the said purpose, names to be sponsored by the Engineer-in-Chief (Civil), Odisha from the State level merit/panel list of Diploma Engineers. 3.2. In view of the above decision, the names of the petitioners were sponsored with others similarly listed diploma holders in Civil Engineering to different DRDAs for engagement in the year 2005 and after verification of their documents, the appointment orders were issued to them. While continuing as such in NFFWP, it was merged with the Mahatma Gandhi National Rural Employment Guarantee p. 4 Scheme (MGNREGS) with effect from 2nd February, 2006 and it was decided to re-designate the Junior Engineers as Gram Panchayat Technical Assistants (GPTAs) without prejudice to their service conditions attached to the incumbents of such posts and hence, the terms and conditions of the service remained the same even thereafter for the decision of the Government in Panchayati Raj Department as at Annexure-1. 3.3. 3.3. The Government issued resolution dated 22nd September, 2008 for enhancement of remuneration of Junior Engineers engaged on contractual basis and for their absorption in regular establishment vide Annexure-2 and in that letter, it was stipulated that after completion of three years of uninterrupted contractual service and satisfactory performance, the monthly remuneration of the Junior Engineers shall be enhanced and after satisfactory completion of six years of continuous engagement, they may be considered for absorption in the regular establishment in a scale of pay attached to the said post and accordingly, in terms thereof, the remuneration was enhanced and before completion of six years of service, the petitioners and similarly situated Junior Engineers submitted a request to the PR & DW Department, Water Resource Department, Chief Secretary, Engineer-in-Chief (Civil) and other Departments to consider their regularization in the cadre of Junior Engineer (Civil) as per the decision dated 27th January, 2005. Inspite of several representations, the authorities concerned neither enrolled the petitioners in Water Research p. 5 Department for regularization nor regularized them in PR & DW Department in terms of the resolutions issued by the Government, whereas, the services of some diploma holders much below them in the panel list/merit list were regularized in terms of the resolution dated 22nd September, 2008 immediately after completion of six years of service and were even allowed retrospective regularization. Finding no other alternative, the petitioners approached the State Administrative Tribunal by filling OAs demanding regularization as per the resolution (supra) with necessary clarification issued by the Government and for releasing the consequential service and financial benefits to them from the dates of their initial engagements. 3.4. In the meantime, the Government directed preparation of a database of the GPTAs and accordingly, a list was prepared on the basis of merit and year-wise seniority by the Engineer- in-Chief, (Civil), Odisha as per Annexure-3, wherein, the names of the petitioners find place at serial Nos.2, 3, 30, 82, 90 and 107 respectively. The said list was sent to all the DRDAs vide Annexure-4 series directing circulation among the GPTAs inviting objections, if any and thereafter, it was made final. According to Annexure-4 series, the list was prepared on the basis of merit and seniority and the petitioners were placed therein at Serial Nos.1, 2, 15, 47, 52 and 61 respectively. During the pendency of the OAs, the Government in PR & DW Department took a decision by resolution dated 19th March, 2018 vide Annexure-5 for absorption of the GPTAs. Considering the aforesaid p. 6 development, the OAs were disposed of by order dated 3rd May, 2018 as at Annexure-6 with a direction to the State Govt. to take a policy decision as a one-time measure for regularization of services of the petitioners and others within a stipulated time in terms of the resolution dated 22nd September, 2008. 3.5. Despite the merit/panel list and the resolution dated 22nd September, 2008 when the petitioners were entitled to be absorbed just after completion of six years of service and eligible to receive all the service benefits, the Government in PR & DW Department by office order dated 22nd September, 2018 i.e. Annexure-7 absorbed 452 GPTAs found below the petitioners in the merit/panel. Subsequent to it, the Government in PR & DW Department by order dated 25th January, 2019 directed absorption of the petitioners as per the resolution dated 19th March, 2018 instead of the resolution dated 22nd September, 2008 without granting them service benefits from the date of completion of six years of their services rendered and by that process, they were kept below others which resulted in hostile discrimination for the arbitrary exercise of power by the Govt. Apart from the above, the principles while preparing a general merit list were not followed as candidates belong to reserved category selected in open competition on their own merit ought to have been included in the general category and not against the quota, an exercise, which was given a go by. 4. The counter affidavit is filed by the State through opposite party No.3, wherein, it is pleaded that the petitioners joined p. 7 as the GPTAs engaged on contractual basis under MGNREGS in different districts of the State being sponsored by the Engineer-in-Chief (Civil), Odisha and such engagement was not against any sanctioned posts. It is further pleaded that the petitioners were given appointments under a Scheme only to implement and supervise the MGNREGS works at GP level on contractual terms and conditions fixed by its guidelines and it was a tenure based engagement to continue and to exist till the fund was received from Government of India evident from the PR & DW Department’s letter dated 16th July, 2010 as at Annexure-A/3. Furthermore, the Government after careful consideration on 19th March, 2018 took a policy decision to bring over the eligible GPTAs to the regular establishment against existing vacant posts of Junior Engineers in the Diploma Engineer Service Cadre by resolution as per Annexure-5 and therein, the stipulation was that the absorption shall be in a phased manner subject to satisfactory completion of six years of continuous service, good track record and availability of vacancy in the post of Junior Engineers in the category to which they belong to. The further pleading is that the resolution dated 19th March, 2018 is having no provision of retrospective absorption in the post of Junior Engineers and as to the inter se seniority, it is stipulated therein that the Junior Engineers in the cadre in respect of the GPTAs absorbed shall be determined as per their position in the select list of Diploma Engineers maintained by the Engineer-in-Chief, (Civil), Odisha. Since the GPTAs have been absorbed in the vacant posts of Junior p. 8 Engineers in the category to which they belong as per the resolution and rules, the seniority was fixed accordingly. 4.1. The petitioners’ engagement as GPTAs is in respect of the posts under a Scheme governed by the guidelines of MGNREGS and their monthly remuneration was enhanced by the Government, who have completed three years of service and as no other terms and conditions of the resolution dated 22nd September, 2008 have been accepted. Furthermore, the GPTAs were appointed not against any sanctioned posts, hence, their claim for regularization based on the resolution dated 22nd September, 2008 is not tenable. 4.2. The State Administrative Tribunal while disposing of the OAs concluded that the petitioners and others cannot be treated at par with Junior Engineers appointed under the Orissa Junior Engineers’ Cadre (Recruitment and Conditions of Service) Rules,1972, hence, no direction can be issued for their regularization and in such view of the matter, the relief sought for at present is not sustainable in law. 4.3. With regard to the resolution dated 19th March, 2018 and first phase absorption of 452 GPTAs is concerned, the petitioners could not be accommodated since posts of Junior Engineers under SEBC category were not available as they all belong to that category and therefore, it was followed by creation of 908 additional posts of Junior Engineers, whereafter, absorption could take place vide PR & DW Department office order i.e. Annexure-8. p. 9 4.4. As per the resolution of the Government in PR & DW Department dated 25th January, 2019 and stipulation therein, the regular service of the absorbed GPTAs as Junior Engineers shall be reckoned from the date they were brought into the cadre and therefore, the status of regular Junior Engineer with a demand for consequential service and financial benefits with retrospective effect cannot be entertained as the petitioners are not similarly situated like others whose services were regularized in other Departments and hence, there is no discrimination whatsoever, all the more when, they were in a contractual appointment under a Scheme which is not governed by the cadre rules. 5. Perused the rejoinder affidavit filed by the petitioners, wherein, it is reiterated that their regularization should have been in terms of the resolution dated 22nd September, 2008 specifically when the remuneration was enhanced with such a stipulation that services are to be regularized on completion of six years of service. It is reiterated that the petitioners were to be absorbed retrospectively from the year 2008 and not from 2019 when they are above many others in the merit/panel list maintained by the Engineer-in-Chief (Civil), Odisha and therefore, the decision of the authorities in denying them their due and also seniority is gross illegal. 6. An additional affidavit dated 28th September, 2022 is filed by the State and the same is gone through. The facts earlier stated have been reasserted therein claiming that that the petitioners are not entitled to retrospective absorption. It is pleaded that the petitioners were simply placed in a list of the p. 10 GPTAs just to confirm their service particulars, such as, date of birth, date of engagement and category to which they belong and therefore, the contention advanced claiming it to a seniority list is misconceived. It is further pleaded that due to a complex situation that had emerged, the Government on 19th March, 2018 had to take a policy decision to bring over the eligible GPTAs to regular establishment and it was followed by a resolution of PR & DW Department with conditions that the GPTAs shall be absorbed in a phase-wise manner subject to satisfactory performance and availability of vacancies in the cadre of Junior Engineer. Under the above circumstances, the petitioners having been regularized in 2019 cannot demand retrospective absorption from 2008. 7. Also gone through the reply to the additional affidavits filed by the petitioners dated 10th November, 2024 and 15th December, 2024. 8. Heard Mr. Mishra, learned Senior Advocate for the petitioners and Ms. Sahu, learned AGA for the State. 9. In course of hearing, Mr. Mishra, learned Senior Advocate appearing for the petitioners cited the following decisions, such as, Ratnank Mishra and others Vrs. High Court of Judicature at Allahabad through Registrar General 2025 SCC OnLine SC 2896; State of Maharashtra Vrs. Manubhai Pragaji Vashi and others (1995) 5 SCC 730 and Dr. G. Sadasivan Nair Vrs. Cochin University of Science and Technology and others in Civil Appeal No.6994 of 2021 to contend that decision of the Government directing p. 11 regularization of the petitioners as GPTAs into the regular cadre not in terms of resolution dated 22nd September, 2008 but by virtue of the resolution of the year 2019 is arbitrary and therefore, outrightly illegal. The contention is that the decision is selective and by a pick and choose method to the prejudice of the petitioners, who are senior and above in the merit/select list of the Diploma Engineers. Mr. Mishra, learned Senior Advocate would submit that such decision is discriminatory and therefore, the same is liable to be interfered with. The contention is that the petitioners did not have any option or for that matter, no any choice was given to them while their names being sponsored to be appointed under a Scheme and on that premise, their regularization in the Junior Engineer cadre cannot be opposed when it should have been allowed in terms of the resolution dated 22nd September, 2008 applicable to all the diploma holders. Referring to the decision in Dr. G. Sadasivan Nair (supra), it is contended by Mr. Mishra, learned Senior Advocate that the action of the Government has discriminated the petitioners who have become juniors to others and as it is not based on any reasonable differentiation, hence, violative of equality rights. By placing reliance on the decision in Ratnank Mishra (supra), it is also contended that the unequal treatment accorded to the similarly situated cannot be sustained. The contention is that the petitioners are eligible and entitled to regularization with retrospective effect in terms of the resolution of the Government dated 22nd September, 2008 and accordingly, the inter se seniority is to be worked out entitling them all such service benefits. Page 12 of 18 10. On the contrary, Ms. Sahu, learned AGA for the State would submit that the petitioners were engaged under a Scheme as GPTAs and regularized according to the resolution of the Government in the manner contemplated, hence, inter se seniority as such shall have to be and in terms of the cadre rules and therefore, they cannot be allowed to claim absorption from any anterior date. It is submitted that such engagement was under NFFWP later merged with MGNREGS. In so far as absorption of the petitioners is concerned, according to Ms. Sahu, learned AGA, the Government considered the same in the year 2019 subsequent to the resolution of the PR & DW Department dated 19th March, 2018 with a stipulation therein that regular service of the absorbed GPTAs as Junior Engineers shall be determined from the date when they were brought into the Odisha Diploma Engineers Service Cadre and therefore, status of a regular Junior Engineer with service and financial benefits demanded in terms of the resolution dated 22nd September, 2008 is ill-conceived. The contention is that the claim of parity of the petitioners is unacceptable when others were regularized in Government Departments and brought over to the cadre. In other words, Ms. Sahu, learned AGA contends that the contractual appointment was against posts under a Scheme and not governed by the cadre rules of other departments and any regularization with a retrospective effect demanded by the petitioners is liable to rejection. 11. The question is whether the petitioners as Diploma Engineers can be allowed antedated absorption and seniority p. 13 above others, who were regularized earlier? Of course, in Government Departments, seniority in a cadre or grade is determined by the date of substantive appointment of regularized, rather, than initial entry into service. In general, if juniors are regularized into substantive service at an earlier point of time, they would rank senior to others regularized later regardless of original positions held by them in a panel and select list. As a necessary corollary, seniority is counted from the date of regularization. In the case at hand, the petitioners belong to a panel prepared and maintained and since placed at positions above others regularized earlier in other Departments of the Government, absorption of service is, hence, claimed retrospectively demanding seniority. There is no denial to the fact that the cadre rules of the Junior Engineers do not envisage any such years of service under a Scheme to be counted for the purpose of seniority among the Junior Engineers. But as it is normally understood, if juniors are regularized at a given point of time and it is before the seniors join after regularization, irrespective of original rank/position held in a panel and select list, the inter se seniority is determined from the date of one’s substantive appointment in the cadre. It could well be challenged when retrospective absorption is demanded since the same is certainly to alter the established seniority. It may also be questioned in absence of stipulations in the cadre rules. In other words, back dated absorption and seniority may be resisted unless specific cadre rules provide it. Regularizing someone is always a fresh appointment and therefore, back p. 14 dated seniority could face strong resistance if otherwise the cadre rules stipulate and allow the same. 11.1. As to the plea of the petitioners that their panel list of diploma holders placed them above others, who are juniors and hence, the cadre seniority shall have to be freshly prepared with their retrospective absorption, this may also be opposed on the premise that any such placement in a list merely grants a right to be considered for appointment and it does not confer any vested right over others regularized before. Once substantive appointment takes place, the inter se seniority is determined based on continuous officiation in the cadre not by taking into account previous panel/merit list or rank or initial joining under a contractual/ad hoc scheme. Seniority and promotion are strictly governed by the statutory service rules. If the relevant rules under which the scheme was created flexibly stipulate that prior contractual or scheme based service shall be counted towards seniority at the time of regularization, such claim is considered valid. However, in absence of any such express rule or administrative decision, retrospective seniority in a cadre is considered foreclosed. 12. A seniority is fundamentally linked to the date an employee officially enters the regular cadre, not on account of placement on a selection panel or temporary scheme enrollment. The Apex Court in State of Bihar and others Vrs. Akhouri Sachindranath and others 1991 Supp (1) SCC 334 held and observed that retrospective seniority cannot be granted from a date before an employee was actually born in the cadre and a position in a panel or merit p. 15 list only confers eligibility, not vested right to seniority over individuals, who have already been regularized. The date of regularization is the anchor and unless it is stated otherwise in the scheme/guidelines/rules, seniority is to be counted from the date of regular appointment. The retrospective absorption or regularization is rarely considered because of its significant financial implications and for disrupting inter se seniority of the existing cadre. Retrospective seniority or parity may only be granted if the recruitment or cadre rules explicitly provide weightage for prior ad hoc or temporary scheme service towards seniority or where there was any administrative error in processing the regularization that it must be rectified. A candidate’s position in a panel list determines initial merit but it does not equate to seniority for promotion until he or she is formally regularized against a sanctioned post. If a junior is regularized earlier through a valid Government process, seniority is to be counted from that prior date and the senior cannot claim seniority upon regularization retrospectively unless specific service rules permit it. 13. In view of the principles highlighted upon and discussed hereinabove, the Court is to consider, whether, in the peculiar facts and circumstances of the case, the petitioners’ demand for retrospective regularization on completion of six years of service from the date of appointment is entertainable. Admittedly, the petitioners joined under a scheme and with a merger came to be redesignated as GPTAs. It is not denied that from a panel list, the names of the diploma holders were p. 16 sponsored. The plea of the petitioners is that they were not given any or choice while being engaged under a Scheme, whereas, others below them in the merit/panel list maintained by the Engineer-in-Chief, (Civil), Odisha and PR & DW Department Government of Odisha were picked up and allowed to join in regular Govt. Departments. It is alleged that there has been no rational basis while sponsoring the candidates for their engagement under a Scheme and also in the Government Departments/Undertakings. It is further alleged that by adopting pick and choose method, the candidates were sponsored from out of the panel list and it led to a situation where juniors’ services were regularized before the petitioners, who, as a result, have been discriminated against and hence, retrospective absorption and inter se seniority shall have to be considered. 14. It is definitely a subject of debate as to what were the criteria in sponsoring the names from the panel/merit list, which is not clearly discernible from the record. The reply of the State is with reference to the list prepared for the GPTAs which is obviously prepared and circulated for specific details to be collected since needed at the time of regularization. If a panel is in place, it is quite natural to expect that the names from it are to be sponsored to Govt. Departments/Undertakings/Institutions chronologically based on the original positions secured and held in the merit list. At that stage, there was no occasion for a consideration or selection on merit except to follow a uniform pattern to sponsor the candidates. The Court is completely in dark as to p. 17 on what basis the sponsors have been made and how the candidates from the panel/merit list were picked up and earmarked for Govt. Departments/Undertakings. The original panel has been prepared and claimed to be based on merit and also seniority. Having regard to the fact that no nexus is revealed justifying the sponsors made in the manner it was accomplished excluding the petitioners higher in positions and placed in the panel/merit list, according to the Court, such an exercise could have been conceived of after a proper deliberation. Why and on what basis the petitioners, who did not have the option to choose, were segregated and singled out and picked up for being engaged under a Scheme is beyond one’s comprehension when all were to equally benefit from the resolution for absorption upon completing six years of contractual service. Whether in a large-scale absorption with creation of posts in a phased manner, any such plea of the petitioners demanding retrospective absorption is feasible? In the peculiar fact situation, this Court is of the view that a direction is therefore necessary to the Govt. to consider the said aspect and demand towards fixation of inter se seniority among the Junior Engineers brought over to the cadre from a common list or panel maintained when the demand for absorption is rested on the resolution dated 22nd September, 2008 and to take a decision thereon within a stipulated period regard being had to the case laws cited and discussed herein before. 15. Hence, it is ordered. Page 18 of 18 16. In the result, the writ petition stands disposed of with the direction as aforesaid. It is further directed that opposite parry No.1 shall consider and examine the plea of the petitioners vis-a-vis retrospective absorption with reference to the resolution dated 22nd September, 2008 at Annexure-2 followed by a decision thereon without being influenced by any of the observations made herein before but at the earliest, preferably within a period four months from the date of receipt of a copy of this judgment. (R.K. Pattanaik) Judge Tudu