1IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.23919 of 2022 Jhatu Charan Das …. Petitioner Mr. M.K. Sahoo, Advocate -versus- State of Odisha and Others …. Opposite Parties Mr. C.K. Pradhan, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 14.05.2026 14. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. The present Writ Petition has been filed inter alia with the following prayer:- “It is therefore most respectfully prayed that this Hon’ble Court may be pleased to quash the order dated 19.08.2022 passed by the Opp. Party No.2 vide Annexure-5 and thereby be pleased to give a direction to the Opp. Parties, particularly to Opp. Party No.2, for regularization of service of the petitioner with other consequential service benefits. This Hon’ble Court may also be pleased to pass any other further order/orders as deemed fit and proper in the facts and circumstances of the case.” 4. Learned counsel appearing for the petitioner contended that petitioner was appointed as a daily wage Class-IV employee on 44 days basis at Nimpur Interception Point vide order dated 22.04.1992 of the Commercial Tax Officer, Cuttack-II Circle, Cuttack under Annexure-1. 4.1. It is contended that while continuing as such on daily wage basis, vide order dated 06.11.1993 under Annexure-2, petitioner was deputed to work in the office of Additional Commercial Tax Officer-in charge at Nimpur Interception Point as Barrier Operator until further orders. 4.2. Learned counsel for the petitioner contended that in terms of order dated 06.11.1993, petitioner continued as a Barrier Operator in the office of Addl. Commercial Tax Officer-in charge, Nimpur Interception Point. It is contended that while the matter stood thus, when an advertisement was issued by the Commercial Tax Officer under Annexure-8, inviting applications for recruitment as against 6 (six) posts of Peon in his office, petitioner challenging the same and seeking regularization of his services, moved the Tribunal by filing O.A. No.772 of 1996. Learned Tribunal while issuing notice of the matter vide order dated 21.03.1996 under Annexure-7, passed an interim order to the effect that the concerned authorities can terminate the petitioner from his deployment only after obtaining leave from the Tribunal. 4.3. It is contended that in the said Original Application, no application was ever filed seeking leave of the Tribunal to terminate the petitioner from his work. It is contended that aforesaid O.A. No.772 of 1996 was disposed of by the Tribunal vide order dated 10.03.2006, with a direction on the Opp. Party No.2 to consider the petitioner’s claim with passing of an appropriate order. Such claim of the petitioner when was rejected vide order dated 02.08.2006, petitioner challenging the same, once again approached the Tribunal in O.A. No.1661 of 2006. However, pursuant to the advertisement so issued on 26.02.1996 under Annexure-8, 10 persons were appointed as against the post of Peon. 4.4. It is contended that the Tribunal vide order dated 14.03.2011 in O.A. No.1661 of 2006 when directed for consideration of the petitioner’s claim for regularisation, in terms of Finance Department Resolution dated 15.05.1997, petitioner challenging such order, approached this Court by filing W.P.(C) No.25328 of 2011. 4.5. The aforesaid Writ Petition was disposed of vide order dated 08.04.2022, inter alia with the following observation and direction so contained in Para-6 which reads as follows:- “6. Having heard learned counsel for the parties, since by virtue of policy decision taken by the Government, some employees have been regularized and pursuant to such policy decision of the Finance Department dated 15.05.1997, the tribunal directed for consideration of the case of the petitioner, let the opposite parties consider and pass appropriate order with regard to regularization of service of the petitioner and communicate the same to the petitioner.” 4.6. It is contended that taking into account the nature of order passed by the Tribunal on 14.03.2011 in O.A. No.1661 of 2006 and further order dated 08.04.2022 in W.P.(C) No.25328 of 2011, claim of the petitioner when was rejected vide the impugned order dated 19.08.2022 under Annexure-5, the present Writ Petition was filed challenging the said order and with a direction to regularize the services of the petitioner with all consequential service benefits. 4.7. Learned counsel for the petitioner contended that since there is no dispute that petitioner was engaged as a Daily Wager w.e.f. 22.04.1992 as per order under Annexure-1 and the said appointment being made prior to the cut-off date so fixed by the finance department in its Resolution dtd.15.05.1997 i.e. 12.04.1993, on the face of such continuance of the petitioner as a Daily Wager, his claim could not have been rejected vide the impugned order dated 19.08.2022 under Annexure-5. 4.8. It is also contended that petitioner during pendency of the Writ Petition since has attained the age of superannuation, Opp. Parties be directed to treat the petitioner to have retired from service as a regular employee for the purpose of granting minimum pension, as due and admissible in favour of the petitioner. 5. Learned Addl. Govt. Advocate on the other hand while supporting the impugned order, contended that petitioner is not in service beyond 05.02.1993 and he has only rendered service for the period from 23.04.1992 to 05.02.1993. It is accordingly contended that neither his claim is covered as per the Finance Department Resolution dated 15.05.1997, nor he is eligible to get the benefit of regularization. Stand taken in Para-4 of the counter affidavit reads as follows:- “4. That as regards the averments made in paragraphs-2 to 3 of the writ petition, it is most humbly submitted as follows: (i) That, the petitioner was initially appointed on daily wage basis for 44 days vide Office order No.1965/CT, Dt.22.04.1992 Commercial Tax Officer, Cuttack-II Circle, Cuttack to act as a class-IV employee at Nimpur Interception Point under Cuttack-II Circle of Commercial Tax Organization. The said Interception Point was functioning temporarily for some time for checking of tax evasion by goods vehicle where the petitioner was working as a Barrier Operator along with other regular class-IV staff. After completion of his initial term of engagement of 44 days from 23.04.1992 to 05.06.1992, he was further engaged from 08.06.1992 to 21.07.1992, 25.07.1992 to 06.09.1992, 19.09.1992 to 01.11.1992, 05.11.1992 to 18.12.1992 and 24.12.1992 to 05.02.1993 on subsequent spells. He has already been paid his wages for the aforesaid periods at the prescribed rate i.e.@Rs.25/- per day. (ii) That, Government in Finance Department had imposed ban on daily wage engagement vide Finance Department Circular No.17815/F, Dt.12.04.1993 and thereafter the services of the petitioner was never utilized by the department. (iii) That, in contravention of the above F.D. circular dt.12.04.1993, an office order was issued from Cuttack-II Circle on 06.11.1993 regarding deployment of the petitioner as Barrier Operator in Nimpur Interception Point until further orders under intimation to him in the next memo, which itself was irregular & illegal. However, this order was not carried out. (iv) That, it is seen from the records that wages for the periods of working of Sri Das on daily wage basis has already been paid to him. There is no proof to the effect that he has ever worked for the CT Organization (Cuttack-II Circle) in any capacity after 05.02.1993. Further, it is seen that he was given opportunity to participate in the subsequent interview for selection & appointment of Class-IV Staff (Peon) and he was not found suitable for the same. (v) That Nimpur Interception Point which was functioning by the orders of the ACCT, Cuttack-II Range was subsequently abolished. (vi) That during engagement of the petitioner on daily wage basis to act as Barrier Operator/Class-IV staff at Nimpur Interception Point under Cuttack-II Circle of Commercial Tax Organisation, no recruitment procedure was observed. Hence his claim for regularisation against a regular Group-D/Class-IV vacancy is not sustainable in the eyes of law.” 5.1. It is also contended that petitioner’s claim is not covered under Finance Department Resolution dated 15.05.1997, and on the other hand his claim comes under the Finance Department Resolution dated 04.09.2012, which is meant for absorption of daily wages labourer engaged in different public departments prior to 12.04.1993, with conferment of temporary status. However, petitioner’s claim pursuant to the order passed by this Court in W.P.(C) No.25328 of 2011, was duly considered and rejected and he was not found eligible to get the benefit of regularization as he is not in service beyond 05.02.1993. 6. Considering the submission made, this Court when directed learned Addl. Govt. Advocate vide order dated 10.03.2026, to obtain instruction as to whether order dated 06.11.1993, so issued under Annexure-2, was ever withdrawn or cancelled, the following instruction was provided by the Office of Special Commissioner of CT & GST, vide letter dated 06.05.2026:- “In inviting a reference to the L. No. and the subject cited above, I am directed to say that as per information provided by the Opp. Party No.3 vide L. No. 1498/ CT & GST, dt. 06.05.2026 (copy enclosed) there is no evidence as to whether order dt. 06.11.1993 so issued under Annexure-2 was ever withdrawn or cancelled. But it transpires from the office records that the services of the petitioner has never been utilised after 05.02.1993, and wages for the period of his working in different spells between 23.04.1992 & 05.02.1993 have already been paid to him. It is, therefore, requested that the above fact may kindly be apprised to the Hon'ble Court on the next date of hearing. xxxx xxxx xxxx xxxx “In inviting a kind reference to the subject cited above, I am to intimate that as per available records, Sri Jhatu Charan Das has rendered service on daily wage basis up to 05.02.1993 and for which he has been fully paid. There is no proof that he has ever worked in Cuttack-II Circle in any capacity after 05.02.1993. Further, there is no proof available in this office whether the order dated 06.11.1993 is ever withdrawn or cancelled.” 7. Basing on the instruction, learned Addl. Govt. Advocate contended that since there is no record available with regard to continuance of the petitioner beyond 05.02.1993 and petitioner has already been paid with the wages for the period he worked in different spell from 23.04.1992 to 05.02.1993, petitioner is not eligible and entitled to get any benefit, which has been rightly rejected vide the impugned order dated 19.08.2022 under Annexure-5. 8. To the submission made by learned Addl. Govt. Advocate, learned counsel for the petitioner made further submission contending inter alia that while continuing as a daily wager in terms of order dated 22.04.1992, so issued under Annexure-1, petitioner was deputed to work as such in the office of Addl. Commissioner-In charge, Nimpur Interception Point as Barrier Operator vide order dated 06.11.1993 under Annexure-2. 8.1. On the face of such order and continuance, petitioner when was not regularized, he approached the Tribunal by filing O.A. No.772 of 1996. The said Original Application was disposed of vide order dated 10.03.2006. 8.2. On the face of such order passed by the Tribunal on 10.03.2006, when petitioner’s claim was rejected vide order dated 02.08.2006, challenging the same, petitioner again approached the Tribunal by filing O.A. No.1661 of 2006. The Tribunal vide order dated 14.03.2011, when directed for consideration of the petitioner’s claim to get the benefit of regularization in terms of Finance Department Resolution dated 15.05.1997, petitioner challenging such order, approached this Court by filing W.P.(C) No.25328 of 2011. This Court vide order dated 08.04.2022, when directed for consideration of the petitioner’s claim in terms of the Finance Department Resolution dated 15.05.1997 and decision in the case of State of Karnataka Vs. Uma Devi, such claim of the petitioner was rejected vide the impugned order dated 19.08.2022 under Annexure-5. 8.3. It is contended that in none of the matters so filed before the Tribunal as well as before this Court, a stand was ever taken that petitioner is not in service beyond 05.02.1993 and such a stand is being taken for the first time in the counter affidavit so filed. 8.4. It is contended that since no such stand was taken by the State Machinery, that petitioner is not in service beyond 05.02.1993 on the face of the order passed under Annexure-2 on 06.11.1993, such stand taken by the State-Opp. Parties cannot be accepted. Since petitioner is prosecuting his claim since 1996 and was never the case of the Opp. Parties that petitioner is not in service beyond 05.02.1993, such a plea cannot be taken at this stage. 8.5. It is further contended that order dated 06.11.1993, so issued under Annexure-2, since was never recalled nor cancelled, it has to be held that petitioner continued in the same capacity, till he attained the age of superannuation and accordingly entitled to get the benefit of regularization as well as release of all retiral benefits in his favour. However, it is fairly contended that petitioner will have no grievance, if petitioner will be extended with the benefit of minimum pension by treating him to have retired as a regular employee. 9. Having heard learned counsel for the parties and considering the submissions made, it is found that petitioner was initially engaged as a Daily Wage Class- IV employee vide order dated 22.04.1992 under Annexure-1. While so continuing vide order dated 06.11.1993 under Annexure-2, petitioner was deputed to work in the office of Addl. Commercial Tax Officer-in charge, Nimpur Interception Point until further orders. As found, while so continuing in terms of order dated 22.04.1992 and 06.11.1993, when an advertisement was issued to fill up 6(posts) of Peon in the establishment of Opp. Party No.3, petitioner claiming benefit of regularization, approached the Tribunal by filing O.A. No.772 of 1996. 9.1. In the said Original Application, the Tribunal passed an interim order on 21.03.1996, by restraining the Opp. Parties from terminating the petitioner from his work without leave of the Tribunal. No such application was ever filed by the State seeking leave of the Tribunal to terminate the petitioner from his work till the matter was disposed of vide order dated 10.03.2006. 9.2. Pursuant to such order passed by the Tribunal on 10.03.2026, when petitioner’s claim was rejected vide order dated 02.08.2006, petitioner challenging the same once again approached the Tribunal by filing O.A. No.1661 of 2006. The Tribunal vide order dated 14.03.2011, when directed for consideration of the petitioner’s claim to get the benefit of regularization in terms of Finance Department Resolution dtd. 15.05.1997, petitioner challenging such order, approached this Court by filing W.P.(C) No.25328 of 2011. This Court vide order dated 08.04.2022, while disposing the Writ Petition, directed the Opp. Parties to consider the petitioner’s claim to get the benefit of regularization in terms of Finance Department Resolution dated 15.05.1997 and the decision in the case of Uma Devi so cited (supra). However, petitioner’s claim was rejected vide the impugned order dated 19.08.2022 under Annexure-5. 9.3. Since no such stand was ever taken either before the Tribunal or before this Court that petitioner is not in service beyond 05.02.1993 and accordingly not eligible and entitled to get the benefit of regularization, such a plea taken in the present Writ Petition, is not acceptable to this Court. 9.4. Such a plea is now being taken on the plea that all the records with regard to engagement and continuance of the petitioner has been destroyed in the Super cyclone of the year 1999. Since order dated 06.11.1993 so issued under Annexure-7, which is not disputed, was never cancelled or withdrawn nor any stand was ever taken that petitioner after 05.02.1993 is not in work, this Court taking into account the rejection of the petitioner’s claim time and again to get the benefit of regularization, is of the view that petitioner continued as a daily wage Class-IV employee, till he attained the age of superannuation. 9.5. Placing reliance on the decision in the case of Uma Devi so followed now 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 another decision of the Apex Court in the case of Bhola Nath Vs. State of Jharkhand and Others, 2026 INSC 99, this Court is of the view that petitioner is eligible and entitled to get the benefit of regularization. 9.6. Therefore, this Court while quashing the impugned order dated 19.08.2022 under Annexure-5, direct the Opp. Parties to treat the petitioner to have retired from service as a regular employee for the purpose of sanction of minimum pension in his favour. This Court is inclined to pass such an order taking into account the suffering of the petitioner and his continuance as a NMR all through w.e.f. 22.04.1992. 9.7. This Court directs the Opp. Parties to pass an appropriate order by treating the petitioner to have retired from service as a regular employee and extend the benefit of minimum pension from the date of his entitlement, with release of the arrears. This Court directs the Opp. Parties to complete the entire exercise within a period of 3(three) months from the date of receipt of this order. 10. The Writ Petition stands disposed of accordingly. (Biraja Prasanna Satapathy) Judge Basudev