IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.13000 of 2022 Ajay Kumar Patra …. Petitioner Mr. L.K. Mohanty, Adv. -versus- State of Orissa & Others …. Opposite Parties Mr. S. Das, ASC COROM: THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 28.01.2026 18. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been filed inter alia challenging order dt.02.05.2022 so passed by Opp. party No.1 under Annexure-6. Vide the said order, claim of the Petitioner to antedate his date of regularization from the date vacancy as against the post of Driver was made available in the establishment of Opp. Party No.3 was rejected, pursuant to the order passed by this Court in W.P.(C ) No.1041 of 2022. 4. Learned counsel appearing for the Petitioner contended that Petitioner was engaged as a DLR Driver in the establishment of Opp. Party No.3 on 01.11.1990. On such engagement as a DLR Driver, Petitioner was allowed to continue without any break. Since Petitioner on the face of such continuance as a DLR Driver w.e.f 1.11.1990 was not regularized, Petitioner approached the Tribunal by filing O.A. No.475(C ) of 2002. 4.1. It is contended that even though such an application was filed in the year 2002 claiming the benefit of regularization and by the time such an application was filed, there was a vacancy as against the post of Driver, so available in the document enclosed vide Annexure-7, but Petitioner was never regularized nor any counter affidavit was filed in the said Original Application till the matter was disposed of vide order dt.15.05.2015 under Annexure-3. It is however, fairly contended that during pendency of the matter before the Tribunal, Petitioner was conferred with temporary status in terms of Finance Department resolution dt.04.09.2012 vide order dt.08.11.2012 under Annexure-1. 4.2. It is further contended that even though one post of regular Driver in the establishment of Opp. Party No.3 remained vacant as reflected in the letter issued by Opp. party No.3 on 14.03.2002 under Annexure-7, but Petitioner in terms of the order passed by the Tribunal under Annexure-3 was regularized as against the post of Driver vide order dt.21.01.2016 under Annexure-4. Since Petitioner on the face of the vacancy available from the year 2002 was regularized only w.e.f 21.01.2016, Petitioner made a detailed representation before Opp. Party No.3 under Annexure-5 with a prayer to antedate his regularization from 15.05.1997. It is contended that as no decision was taken on such claim of the Petitioner, Petitioner approached this Court by filing W.P.(C ) No.1041 of 2022 and this Court vide order dt.27.01.2022 when directed for consideration of the Petitioner’s claim, the same was rejected vide the impugned order dt.02.05.2022 under Annexure-6 of Opp. Party No.1. 4.3. Learned counsel appearing for the Petitioner contended that since while continuing as a DLR Driver w.e.f 01.11.1990, post of regular Driver fell vacant in the establishment of Opp. Party No.3 w.e.f February, 2002 as reflected in Annexure-7 Petitioner should have been regularized as against the said vacant post of Driver w.e.f February, 2002. However, on the face of pendency of the Original Application before the Tribunal from the year 2002, Petitioner was never regularized and instead he was confirmed with the temporary status vide order dt.08.11.2012 under Annexure-1 and was regularized as a Driver vide order dt.21.01.2016 under Annexure-4. It is accordingly contended that since post of regular Driver remained vacant in the establishment of Opp. party No.3 w.e.f February, 2002, Petitioner’s claim for antedating his regularization from the date such vacancy arose in the year 2002, was not properly appreciated and rejected vide the impugned order under Annexure-6. It is accordingly contended that while quashing the impugned order dt.2.5.2022 under Annexure-6, Opp. party No.1 be directed to regularize the services of the Petitioner from the date the post of Driver fell vacant in the establishment of Opp. party No.3 as reflected in letter issued on 14.03.2002 under Annexure-7. 5. Mr. S. Das, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit, so filed by Opp. Party Nos.1 to 3. 5.1. It is contended that Petitioner though was engaged as a DLR Driver in the establishment of Opp. party No.3 on 01.11.1990, but by the time Finance Department Resolution was issued on 15.05.1997, Petitioner had not completed the required 10 years of continuous engagement as a DLR, accordingly his claim was not considered for his absorption in the regular establishment. It is contended that in terms of the Finance Department Resolution issued on 04.09.2012 under Annexure-B/3, Petitioner was conferred with temporary status vide order dt.08.11.2012 under Annexure-1. On the face of such extention of benefit vide order dt.08.11.2012, when the Tribunal while disposing O.A No.475(C ) of 2002 vide order dt.15.05.2015 directed the Opp. Parties to consider the Petitioner’s claim for his absorption as against the post of Driver so lying vacant in the establishment of Opp. party No.3, in consideration of such direction, Petitioner was regularized vide order dt.21.01.2016 under Annexure-4. It is contended that since the Tribunal never passed any order to regularize the services of the Petitioner from a particular date and instead leave the same open for consideration by Opp. Party No.1, petitioner in compliance to the said order, was regularized vide order dt.21.01.2016 under Annexure-4 5.2. It is also contended that Petitioner without raising any objection joined in the regular establishment and only after such joining, made a claim to antedate his date of regularization to 15.05.1997, when the Finance Department resolution was issued. It is contended that since in terms of the order passed by the Tribunal under Annexure-3, Petitioner was regularized as against the vacant post of Driver vide order dt.21.11.2016 under Annexure-4, claim of the Petitioner to antedate his regularization from the date, the vacancy arose in the establishment of Opp. party No.3, has been rightly rejected vide the impugned order under Annexure-6. Stand taken in para-18 of the counter affidavit reads as follows: 18. That, it is humbly submitted that, the Opposite Party No.1 (Add. Chief Secretary to Govt., FE&CC Deptt.) vide Order No.8156 Dt.02.05.2022 considered the representation of Sri Patra, Driver and rejected on the ground that Sri Patra had not completed 10 years of service by 15.05.1997 and there was no such vacancy under the category at that time to which the petitioner belongs to and as per para 5(b)(viii) of Finance Deptt. Resolution No.31715/F Dt.04.09.2012, the period of service rendered by a person as casual/ daily wage labourer and the period of service rendered with Temporary Status will not be counted towards retirement and other service benefits. In case of subsequent absorption against regular vacant post as per para-6 of the Scheme. As per the said resolution, he is not entitled for any pension under OCS (Pension) Rule, 1992 and enrollment under GPF, etc. 6. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that Petitioner was engaged as a DLR Driver in the establishment of Opp. party No.3 on 01.11.1990. On the face of his continuance as a DLR Driver w.e.f 01.11.1990 and the vacancy available in the establishment of Opp. Party No.3 w.e.f February, 2002, so reflected in Annexure-7, Petitioner claiming the benefit of regularization as against such vacant post of Driver, moved the Tribunal by filing O.A. No.475 (C ) of 2002. However, during pendency of the Original Application, Petitioner was conferred with temporary status vide order dt.08.11.2012 under Annexure-14, basing on the Finance Department Resolution dt.04.09.2012. 6.1. Subsequently, while complying with the order passed by the Tribunal, so passed on 15.05.2015 in O.A. NO.475(C ) of 2002 under Annexure-3, Petitioner was regularized vide order dt.21.01.2016 under Annexure-4. 6.2. This Court taking into account the fact that a post of regular Driver fell vacant in the establishment of Opp. party No.3 w.e.f February, 2002 and remained as such, so indicated in Annexure-7, is of the view that since by the time such vacancy arose in the establishment of Opp. party No.3, Petitioner was continuing as a DLR Driver w.e.f 01.11.1990, Petitioner should have been regularized as against the said vacant post, instead of being conferred with temporary status, vide order dt.08.11.2012 under Anenxure-1 6.3. Since there is a clear vacancy available as against the post of regular Driver in the establishment of Opp. party No.3 w.e.f February, 2002, it is the view of this Court claim of the Petitioner to antedate his date of regularization, from the date such vacancy arose in the month of February, 2002, should have been properly appreciated by Opp. party No.1. 6.4. In view of the aforesaid analysis, this Court is inclined to quash Office order dt.02.05.2022 so issued by Opp. party No.1 under Annexure-6. While quashing the said order, this Court directs Opp. Party No.1 to regularize the services of the Petitioner from the date such vacancy arose in the month of February, 2002 so reflected in Annexure-7 with passing of an appropriate order. However, such order of regularization w.e.f February, 2002 be made only on notional basis. Petitioner will not be entitled to any financial benefit from the date of such regularization and will get the same on notional basis. This Court directs Opp. Party No.1 to pass a fresh order as directed within a period of two (2) months from the date of receipt of this order 7. The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Sangita