JUDGMENT A. K. SAMANTARAY, J. — The petitioner in this writ petition under Article 226 of Constitution of India has prayed for issue of a direction to the opposite parties to pay him full emoluments from the date of his termination from engagement till the reen¬gagement and for a further direction to regularize his services with consequential benefits from the date on which his immediate junior was regularized. 2. The background facts as averred in this writ petition in nut shell are as follows: The petitioner, who was an intermediate, was appointed as Depot Assistant/Junior Assistant on daily wage basis with effect from 1.4.1981 under Similipal Forest Development Corporation (SFDC) and worked efficiently and satisfactorily all through. A departmental proceeding was initiated against him for unauthoriz¬edly availing leave and on conclusion of the inquiry, the Disci¬plinary Authority passed the following under on 18.7.1987. “i) Unauthorisedly availing leave from 12.5.87 onwards by Shri Saroj Kumar Sahoo is treated as period without wages. & ii) The engagement of Shri Saroj Kumar Sahoo on daily wage basis is hereby terminated with immediate effect.” 3. The petitioner made a representation to the Managing Director, Orissa Forest Development Corporation Ltd. (O.P. No.1) against the said order taking the stand that the findings were perverse and based on no evidence and he was denied the opportu¬nity of proving his innocence which has caused violation of principle of natural justice. O.P. No.1 in his letter dated 16.1.1992 (Annexure-2) directed reengagement of the petitioner and further directed a de novo inquiry holding that there was violation of the prescribed procedure while conducting the in¬quiry. The petitioner in pursuance of the said order of O.P. No.1 joined and was reengaged on daily wage basis with effect from 21.10.1992. On completion of de novo inquiry the Enquiry Officer exonerated the petitioner from the charges and submitted the inquiry report to the Disciplinary Authority, who after carefully perusing the same concurred with the finding of the Enquiry Officer that the charges against the petitioner could not be established. The Disciplinary Authority directed that the period from the date of termination till his reengagement should be” treated as continuous service for the purpose of regularization without back wages vide Annexure-5. The Disciplinary Authority directed that the period from the date of termination till his reengagement should be” treated as continuous service for the purpose of regularization without back wages vide Annexure-5. It is pleaded by the peti¬tioner in the writ petition that as he was found not to be in fault and in no way responsible for the misconceived charges and termination order as was passed earlier, he is entitled to get full emoluments from the date of termination till reengagement which period has been ordered to be treated as continuous engage¬ment. The further grievance of the petitioner is that during pendency of the inquiry many Junior Assistants/ Junior Clerks, who are junior to him have been regularized. In this regard he has given instance of one Sri Binayak Das, a junior to him, who has been regularized as per the office order dated 7.5.1988 vide Annexure-6. He has also annexed Annexure-8 in which another Junior Assistant, namely, Sri Ramakanta Mishra was regularized on 16.1.1992. It is averred that after he was totally exonerated from the charges and his services were directed to be continuous, he preferred a representation on 13.9.1996 vide Annexure- 7 for his regularization with financial benefits from the date on which his immediate junior was regularized, but the same was not con¬sidered for which he filed this writ petition with the prayer as aforementioned. 4. A counter affidavit has been filed on behalf of the opposite parties wherein it is admitted that the petitioner was engaged as Depot Assistant with effect from 1.4.1981 in the erstwhile SFDC, Udala Sub-division and has subsequently worked as Junior Clerk on daily wage basis and in the departmental proceed¬ing which was initiated against him, his services were terminated by order dated 18.7.1987 with immediate effect. It is stated in the counter affidavit that in the year 1990 specifically on 1.10.1990 the SFDC merged with Orissa Forest Corporation and a new corporation namely Orissa Forest Development Corporation Ltd. (OFDC) was formed. It is admitted that the petitioner was reen¬gaged on daily wage basis on 21.10.1992 and the de novo inquiry continued and final order was passed on 21.8.1996 dropping the proceeding with observation that the period from the date of termination till his reengagement on 21.10.1992 be treated as continuous service for the purpose of regularization and the period from the date of termination till he joined be without back wages. It is stated in the counter affidavit that since the petitioner did not go to the appellate forum against the said order of denial of back wages and has directly approached this Court bypassing the Appellate Authority, the said prayer for back wages/ emoluments cannot be granted to him on the principle of no work no pay. It is further pleaded in the counter that he is not entitled to back wages as he was engaged on daily wage basis. It is specifically averred in the counter with reference to the petitioner’s claim that his juniors have been regularized, and the said regularization was prior to the merger of the SFDC with OFDC and after the merger since there is excess of employees in the corporation, the process of retrenchment and elimination has started and as such the regularization of the petitioner cannot be possible as there is dearth of work in the Corporation. It has been specifically averred that after the merger on 1.10.1990 no regularization has been done in respect of any of the daily wage employees and as such the question of consideration of the case of the petitioner does not arise. It is finally pleaded that in the circumstances the petitioner is not entitled to any relief. 5. A rejoinder affidavit to the counter affidavit of the opposite parties has been filed by the petitioner wherein he has stated that Sri Binayak Das, who has been regularized as per order vide Annexure-6 was initially appointed on 5.11.1981 as per the document filed by the opposite parties whereas the date of appointment of the petitioner is admittedly 1.4.1981. He has also named twelve employees who were appointed in between the years 1984 to 1986 who have been regularized and all these per¬sons are junior to him. It is further stated that since his continuity as daily wage worker was maintained after the conclu¬sion of the de novo inquiry the petitioner is senior to all the thirteen persons who have been retained in service and in no case he can be retrenched by retaining his juniors. It is further stated that since his continuity as daily wage worker was maintained after the conclu¬sion of the de novo inquiry the petitioner is senior to all the thirteen persons who have been retained in service and in no case he can be retrenched by retaining his juniors. It is stated further that when an employee is completely exonerated from the charges, he should not be deprived of any benefit including the salary of the promotional post and the normal rule of no work no pay is not applicable to such case as he was kept away from the work by the authority for no fault of his. Lastly, it is stated that although it has been repeatedly stated in the counter affi¬davit that after the merger i.e. after 1.10.1990 there has been no regularization of any daily wage worker, one Ramakanta Mishra, who was engaged on daily wage basis in SFDC in 1985 has been regularized in service after the said merger and date of his regularization is 16.2.1992 as per Annexure-8. The petitioner has averred finally that if all the juniors to him who have been regularized are retrenched, the petitioner has no grievance of being retrenched but as a regular Junior Assistant. 6. The undisputed fact is that the petitioner was working on daily wage basis as a Depot Assistant/Jr. Assistant with effect from 1.4.1981 under Similipal Forest Development Corpora¬tion (SFDC). The SFDC as well as the Orissa Forest Corporation were merged with a new Corporation, namely, Orissa Forest Devel¬opment Corporation Ltd. (OFDC), on 1.10.1990. Before the afore¬said merger, the services of the petitioner were terminated by order dated 18.7.1987 passed by the Project Manager of erstwhile SFDC. The petitioner had preferred an appeal against the afore¬said order of termination of service, which was decided by the Managing Director of OFDC, i.e., the newly created Corporation. The said appellate authority while allowing the appeal passed the following order : “Orissa Forest Development Corporation Ltd. (A Government of Orissa Undertaking) A-54, Kharvela Nagar, Bhubaneswar-751001 No.26896/L/C/160/92 Dated, Bhubaneswar the 16th Oct’ 92. To The Divisional Manager, Orissa Forest Development Corporation Ltd., Jajpur Road (C) Division. Sub- P.C. of Shri S.K.Sahoo, Ex-Jr.Clerk. Ref- Your memo No.1866 dt.20.4.92. Dear Sir, With reference to your letter no. To The Divisional Manager, Orissa Forest Development Corporation Ltd., Jajpur Road (C) Division. Sub- P.C. of Shri S.K.Sahoo, Ex-Jr.Clerk. Ref- Your memo No.1866 dt.20.4.92. Dear Sir, With reference to your letter no. cited above, we are to say that the termination of services of Shri Saroj Kumar Sahoo has not been done in accordance with prescribed procedure. As such Shri Sahoo may be re-engaged and de novo enquiry may be conducted giving full opportunity to Shri Sahoo to defend his case. But no back wages will be paid to Shri Sahoo for the period from his termination till his joining. The said period will account for continuous service for purpose of regularization etc. Yours faithfully, Sd/ -Illegible 16.X.92 Managing Director’’ 7. A perusal of the above quoted order shows that the termination of service of the petitioner was found not to have been done in accordance with prescribed procedure. Therefore, the appellate authority ordered that a de novo enquiry should be conducted and the petitioner should be re-engaged without his entitlement to back wages for the period from the date of his termination till his rejoining. But it was specifically ordered that the said period would count towards continuous service for the purpose of regularization etc. Therefore, although the peti¬tioner was not given back wages, the period of his disengagement due to termination was counted for the purpose of regularization meaning thereby that the said period was to be treated as contin¬uous service, or without any break in service for the purpose of regularization. Further, it is also to be noticed that the order was passed by the Managing Director on 16.10.1992, i.e., after formation of the new Corporation, i.e., OFDC and therefore, it cannot be presumed that without the period of his absence due to termination being counted as service in the erstwhile SFDC, the same cannot be done later on. Further, after holding a de novo enquiry by the Divisional Manager, O.F.D.C.Ltd., Jajpur Road (C) Division, it was found that the Enquiry Officer recorded the finding that all the charges framed against the petitioner were not established. Further, after holding a de novo enquiry by the Divisional Manager, O.F.D.C.Ltd., Jajpur Road (C) Division, it was found that the Enquiry Officer recorded the finding that all the charges framed against the petitioner were not established. The Divisional Manager, Jajpur passed the order in the light of the order of the Managing Director on 21.8.1996 to the effect that the period from the date of termination till his re-joining would be treated as continuous services for the purpose of regularization but no back wages would to be paid to the petitioner. The relevant portion of the order of the Divi¬sional Manager is quoted as under: “xxx xxx xxx Findings: Carefully perused the enquiry report and all other connected records/ documents. The E.O. recorded in his findings that all the charges framed against the delinquent Sri S.K.Sahoo, Depot Asst. now L.D.Asst. (D/W) are not established. I do not find any convincing reason to take different views so far the charges are concerned. As such, the following orders are passed. The period from the date of termination till his re-joining is treated as continuous services for the purpose of regularization etc. But no back wages will be paid to Sri S.K.Sahoo, Depot. Asst. now L.D.Asst. (D/W) for the period from the date of his termination till his re-joining as per letter No.26896 dated 16.10.92 of the M.D., OFDC Ltd., Bhubaneswar. For Orissa Forest Dev. Corpn. Ltd. Sd/ - (P.C.Senapaty) Divisional Manager Jajpur Road, (C) Division.” The above order was passed, in the year 1996. Therefore, the plea taken in the counter affidavit that in similar circumstances the service of a junior to the petitioner, namely, Sri Binayak Das, was regularized during the existence of SFDC, apart from the fact that by that date, the petitioner was not in service having been terminated and no regularization have been taken up after 1.10.90 is not sustainable and is contrary to the orders passed by the Managing Director and Divisional Manager both of which have been quoted above. If the Petitioner’s juniors are regular¬ized, the same cannot be taken as a fact, after providing the benefit of continuous service for the purpose of regularization and, therefore, the case of the petitioner cannot be separated from the case of regularization of his junior’s and further his case also cannot be taken into consideration along with other employees of the Corporation, who are working on daily wage basis, junior to the petitioner meaning thereby, those who are appointed after the appointment of the petitioner either in the erstwhile SFDC or newly created OFDC, and thus non-consideration of the regularization of the petitioner on the ground that some employees are being retrenched at this point of time is contrary to the letter and spirit of the order of his reinstatement with the benefit of continuous service, is violative of Article 16 of the Constitution. The petitioner cannot be discriminated with those similarly situated persons who are appointed after the appointment of the petitioner on daily wage basis and have been regularized. 8. In view of the above mentioned facts and circumstances, we are of the opinion that since the petitioner has not in fact worked from the date of termination till the date of his rein¬statement and was initially engaged on daily wage basis, he is not entitled to get wages. However, he is entitled to be consid¬ered for regularization in view of the order for reinstatement passed by the Managing Director with the condition that the period of absence shall be counted as continuous service for the purpose of regularization etc. 9. In view of the above mentioned circumstances, the writ petition is allowed in part. A writ of mandamus be issued com¬manding the Opposite parties to count the period of termination of the petitioner till his rejoining as his service as already ordered by the Managing Director for the purpose of regulariza¬tion etc. considering the fact that his juniors have already been regularized in service. This shall be done within 90 days from the date of receipt of the writ. Requisites for service of the writ shall be filed within a week. B. P. DAS, J. I agree. Petition allowed in part.