Orissa High Court
Odisha State Public Housing & vs State Of Odisha on 13 March, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.2846 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Rabindra Nath Barik
Aged about 57 years
Son of Gandharba Barik
A permanent resident of Shabjamul
P.O.: Sabhamula, P.S.: Jagatsinghpur
District: Jagatsinghpur
Presently working as Peon
At: Divisional Office, O.S.P.H. & W.C.
Bhawanipatana Division
At: ITI Road, Bhawanipatana
District: Bhawanipatana.
2. Trilochan Madhual
Aged about 59 years
Son of Late Narendra Moharana
A permanent resident of
At/P.O.: Baratani, P.S.: Aul
District: Kendrapara
Presently working as Orderly
In Odisha State Police Housing &
Welfare Corporation Limited, Head Office
Bhubaneswar – 22.
3. Pramod Kumar Jena
Aged about 57 years
Son of Jambesh Kumar Jena
W.P.(C) No.2846 of 2023 Page 1 of 80
At: Khasipur, P.O.: Gadaruspa
P.S.: Gop, District:Puri
Presently working as Orderly Peon
In Odisha State Police Housing &
Welfare Corporation Limited
Head Office, Bhubaneswar – 22.
4. Prasant Kumar Behera
Aged about 51 years
Son of Nakula Behera
At/P.O.: Bilasuni, P.S.: Govindpur
District: Cuttack
Presently working as Watchman
In Odisha State Police Housing &
Welfare Corporation Limited,
Head Office, Bhubaneswar – 22.
5. Kartik Ch. Swain
Aged about 53 years
Son of Hanuman Swain
At/P.O.: Santhapur, P.S.: Gondia
District: Dhenkanal
Presently working as Orderly Peon Watchman
In Divisional Office
Odisha State Police Housing &
Welfare Corporation Limited
Balasore, At/P.O.: Kalidaspur
District: Balasore.
6. Maheswar Behera
Aged about 55 years
Son of Gopi Behera
At/P.O.: Takarada, P.S.: Takarada
District: Ganjam
Working as Orderly Peon
In Divisional Office
W.P.(C) No.2846 of 2023 Page 2 of 80
Odisha State Public Housing &
Welfare Corporation Limited
Sambalpur Division
At: Dehuri Palli, P.O.: Budharaja
District: Sambalpur.
7. Bhim Bahadur Ale
Aged about 64 years
Son of Dalabahadur Ale
At: Dal Bhanjyang
P.O.: Batashy Khapani
P.S.: Gorkha
District: P-2 No. Nepal. … Petitioners
-VERSUS-
1. State of Odisha
Represented through
Principal Secretary to Government
Home Department, Odisha Secretariat
Bhubaneswar, District-Khurda.
2. Chairman-cum-Managing Director
Odisha State Police Housing &
Welfare Corporation Limited
At: Janapath, Bhoi Nagar
Bhubaneswar-22
District: Khordha.
3. Director General & Inspector General of Police
At: Cantonment Road
Buxi Bazar, Town/District: Cuttack.
4. Additional Secretary to Government
Department of Public Enterprises
Government of Odisha
W.P.(C) No.2846 of 2023 Page 3 of 80
Odisha Secretariat, New Capital
Bhubaneswar
District: Khordha. … Opposite parties
Counsel appeared for the parties:
For the Petitioners : Mr. Subir Palit, Senior Advocate
along with
Ms. Ananya Pradhan, AdvocateFor the Opposite party : Ms. Saswata Pattnaik,
Nos.1, 3 & 4 Additional Government AdvocateFor the Opposite party : M/s. Girija Prasanna Dutta,
No.2 Kaibalya Manichandan Bhuyan,
AdvocatesP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 05.10.2024 :: Date of Judgment : 13.03.2025
J UDGMENT
Challenging the Office Order No.E-38/06/3489/
OPHWC, dated 12.05.2010 and Office Order No.E-31/
06/3492/OPHWC, dated 12.05.2010 passed by the
opposite party No.2-Chairman-cum-Managing Director of
Odisha State Police Housing and Welfare Corporation
Ltd., by virtue of which Office Order Nos.5451/OPHWC,
dated 19.06.2009 and 5449/OPHWC, dated 19.06.2009,
5460/OPHWC, dated 19.06.2009 and 5464/OPHWC,
dated 19.06.2009 whereby posts of watchman and peon
W.P.(C) No.2846 of 2023 Page 4 of 80
against which the petitioners have been working were
regularised, were withdrawn, this writ petition has been
filed before this Court to invoke the provisions of Articles
226 and 227 of the Constitution of India, with the
following prayer(s):
“It is, therefore, most humbly prayed that this Hon‟ble
Court may be graciously pleased to issue a Writ or Writs
in the nature of a Writ of Mandamus, thereby directing the
Opposite Parties not to revoke petitioners regularization
orders dated 19.06.2009 under Annexure-4 series;
And may graciously be pleased to quash the Office Orders
dated 12.05.2010 & 19.06.2009 as at Annexure-5 Series;
And consequently declare that the Petitioners are Regular
Employees pursuant to order dated 19.06.2009 as at
Annexure-4 Series;
And for which act of kindness the petitioners shall, as in
duty bound, ever pray.”
Facts:
2. Facts, as adumbrated in the writ petition, reveal that the
petitioners are the employees under the Odisha State
Police Housing and Welfare Corporation Limited,
Opposite Party No.2 (hereinafter referred to as the
“Corporation”). The petitioners were initially engaged as
daily wage earners since the year 1987/1989/1994/
1996 as per exigency and as required by the Corporation
by filing applications and appearing in interview.
W.P.(C) No.2846 of 2023 Page 5 of 80
Subsequently, they were appointed on ad hoc basis since
1990/1994/1996.
2.1. The petitioners have been discharging their duties quite
honestly, sincerely and to the best satisfaction of all
concerned since the date of their engagements and also
they have got rewards from the authorities for their good
performance. However, the petitioner No.7, discharging
his duty as watchman in the Corporation, got retired
from service on 30.11.2019.
2.2. A chart indicating the Date of Birth / Educational
Qualifications / Date of Initial Engagement / Date of Ad
hoc Appointment and Date of Regularization of the
present petitioners is stated herein below:
Name Date of Qualifi Date of Date of Date of Period Period
Birth -cation initial Ad hoc Regular of of
Engage Appoin -ization service Servic
-ment -tment on the e as
date of on
passin date
g order
of
regular
-isation
(19.06.
2009)
Rabin- 10.8.66 7th 19.8.87 1.9.94 19.6.09 22 35
dra Nath years years
Barik
(OBC)
Trilo- 20.5.64 8th 9.9.88 29.8.90 Do 21 34
chan years years
Madhual
(UR)
W.P.(C) No.2846 of 2023 Page 6 of 80
Pramod 22.6.66 7th 5.12.88 4.10.90 Do 21 34
Kumar years years
Jena (UR)
Prasant 2.6.72 9th 13.7.92 1.7.96 Do 17 30
Kumar years years
Behera
(OBC)
Kartik 10.6.70 9th 1.7.96 29.6.96 Do 13 26
Ch. years years
Swain
(UR)
Maheswa 3.5.68 8th 26.9.88 1.9.94 Do 21 34
r Behera years years
(OBC)
Bhim 26.11.5 7th 1.6.89 21.3.90 Do 20 33
Bahadur 9 years years
Ale
2.3. The petitioner No.2 got the reward from his authorities
vide Orders dated 26.08.1994, 27.09.1996, 05.04.2000,
12.05.2000 and 01.02.2003 for sincere performance and
devotion in discharging his duties. The petitioner No.4
was rewarded vide Order dated 23.02.2007 for sincerity
and hard work. The petitioner No.6 was also rewarded
vide Orders dated 19.03.1990, 21.05.2004 and
03.05.2005 for his sincerity in duty and hard work.
2.4. A Selection Committee was formed to consider suitability
of ad hoc Watchman and ad hoc Peons/Orderly Peons
for their coming over to the regular establishment. By
proceeding dated 11.06.2009 of the said Selection
Committee, the names of the petitioners had been
approved for regularization. The Selection Committee
had, accordingly, prepared a Gradation List as per the
W.P.(C) No.2846 of 2023 Page 7 of 80
length of service rendered by the petitioners, keeping in
view the availability of vacant sanctioned posts.
2.5. While dealing with it, the Selection Committee had
observed that against 17 sanctioned posts, 8 posts of
peon had already been regularized in between 1990 to
1994 and 8 peons had already rendered their services
for a quite long period on ad hoc basis. In case of present
petitioner No.7, the Selection Committee considered him
suitable to hold the post of Watchman on regular basis.
The proceedings of the Meeting of the Selection
Committee held on 11.06.2009 read as thus:
“As per orders of the CMD in File No.E-38/06 & File No.E-
31/06 the Selection Committee was formed with the Chief
Engineer (Civil) as Chairman and the C.S. & Jt. General
Manager (F) & the Dy. General Manager (Admn.) as
Members to consider suitably of ad hoc Watchmen and ad
hoc Peons/ Orderly Peons for their coming over to the
regular establishment.
The Selection Committee Meeting met on 11.06.2009 in
the Office Chamber of the Chief Engineer, Civil and called
for relevant files / records and their observation is made
hereunder:
Watchman:
There is only one sanctioned post of Watchman
which has been created on 12.01.1981 for the
Corporate Office. But there are 17 Watchmen working
under the Corporation on adhoc basis since 1990/96/99.
Prior to it, they were engaged as Daily Wage EarnersW.P.(C) No.2846 of 2023 Page 8 of 80
since 1994. The CMD is competent to create and make
appointment to the post carrying Rs.5500/- (pre-revised)
per month. The adhoc Watchmen are at present getting
only Rs.2550/- in the scale of Pay Rs.2550-3200 with DA,
HRA etc. without increment on 44 days basis. Since there
is only one sanctioned post, the rule of reservation will not
apply to this case. From the gradation list, it is found that
Sri Bhim Bahadur Ale is the senior most among all adhoc
Watchmen and there is no adverse remark in performance
of his duties. Therefore, the Committee considered Sri
Bhim Bahadur Ale suitable to hold the post of
Watchman on regular basis. The financial implication
on this score will be very nominal.
Peons/Orderly Peons:
There are 17 sanctioned posts of Peons against which 8
(eight) Peons have been regularly appointed. As against
remaining 9 (nine) posts, 8 (eight) Peons have been
working on ad hoc basis since 1990/1994/1996. One
post is kept in abeyance in view of WPC No.8595/05 files
by Smt. Annapurna Swain, Peon (ad hoc). It is found
from the gradation list of peons that the 8 (eight)
Peons from Sl.No.9 to 16 were earlier engaged as
Daily Wage Earners since 1987/1988/1994/1996.
Subsequently they have been appointed on ad hoc
basis since 1990/1994/1996. The CMD is competent
to create and make appointment to the posts
carrying Rs.5500/- per month.
The rule of reservation is applicable to this case.
According to 80-point Model Roster, 11-UR, 3-ST and 3-SC
Peons are required against 17 sanctioned posts. But
within the gradation list 14-UR, 1-ST and 1-SC Peons
(both regular & adhoc) are available leaving one post
vacant. Out of which 6-UR, 1-ST and 1-SC Peons have
W.P.(C) No.2846 of 2023 Page 9 of 80
been earlier regularly appointed and 8-UR Peons are now
working on ad hoc basis.
Since there is no adverse remark against any of the adhoc
Peons, the Committee now considered all the 8 Peons
suitable for regularization of their ad hoc service subject
to condition that the 4(four) reserved posts (2-ST, 2-SC)
can be accommodated against the vacancy that will occur
in future by way of retirement/resignation/creation or
otherwise. The financial implication on this score
will be very nominal.”
2.6. On recommendation of the Selection Committee and
considering the long period of service rendered by the
petitioners, the concerned authority, i.e., opposite party
No.2 regularized the services of the petitioner Nos.1 to 6
in the posts of Peon / Orderly Peon with the scale of pay
of Rs.2550-55-2660-60-3200/- with D.A. and other
allowances and present petitioner No.7 in the post of
Watchman with scale of pay of Rs.2550-55-2660-60-
3200/- with D.A. and other allowances with effect from
19.06.2009 vide Office Order(s) dated 19.06.2009.
2.7. The authorities referred the names for regularisation in
service as per seniority in the gradation list against eight
vacant sanctioned posts of Peons and one vacant
sanctioned post of Watchman to the Board of Directors
and Government for approval.
2.8. It is at this stage pointed out that since the roster
procedure by according reservation was not followed,
W.P.(C) No.2846 of 2023 Page 10 of 80
clarification was sought for. The Selection Committee
considered the case of the petitioners and observed that
8 peons including the present petitioners are working in
the Corporation on ad hoc basis for quite a long time;
amongst them two belong to OBC category. It is also
reflected that the petitioners have long standing
experience and outstanding service records. Thus, they
have been considered for regularization. The Selection
Committee also found that the Scheduled Caste and
Scheduled Tribe candidates can be accommodated
against the vacancies which would occur in future by
way of retirement/resignations/creation of posts or
otherwise. No experienced ad hoc Scheduled Caste and
Scheduled Tribe candidate is available.
2.9. The petitioners had approached this Court in W.P.(C)
No.7983 of 2010 and this Court vide Order dated
14.05.2010 while issuing notice in the said writ petition
had been pleased to grant interim protection to the
petitioner with the following effect:
“*** If the petitioners are continuing in the regular post
they shall continue in the same post until further order.”
2.10. By the date of interim protection, the petitioners had
already completed substantial length of service.
Nonetheless, the opposite party No.2 vide Office Order
No.3489/OPHWC, dated 12.05.2010 and Office Order
No.3492/OPHWC, dated 12.05.2010 have withdrawn the
W.P.(C) No.2846 of 2023 Page 11 of 80
orders of regularization of the services of the petitioners
which were granted vide Office Order No.5451 dated
19.06.2009, Office Order No.5449 dated 19.06.2009,
Office Order No.5460/OPHWC, dated 19.06.2009 and
Office Order No.5464/OPHWC, dated 19.06.2009.
2.11. The said Office Orders dated 12.05.2010 have been
passed behind the back of the petitioners without any
notice to them. Though no orders were communicated to
the petitioners, they could come to know of such fact
from the counter affidavit filed by the opposite party
Nos.1 and 2 in W.P.(C) No.7983 of 2010. The
Corporation in its counter affidavit had relied upon
Office Order No.5464 dated 19.06.2009, wherein earlier
Order No.5449 of even date was made subject to
approval of the Board of Directors in its meeting. The
Corporation in its counter affidavit filed in W.P.(C)
No.7983 of 2010 had admitted that the regularization of
the services of the petitioners as per orders dated
19.06.2009 was done by a Selection Committee which
recommended regularization against existing sanctioned
vacant post. Contrary to such recommendation, the
Corporation also contended that the said orders dated
19.06.2009 were made subject to the approval of the
Board of Director in the next meeting. The Corporation
also relied upon orders dated 12.05.2010, by which
W.P.(C) No.2846 of 2023 Page 12 of 80
regularization of the services of the petitioners were
revoked/withdrawn.
2.12. The petitioners had also filed a composite rejoinder
affidavit in the said writ petition, inter alia, asserting
that orders dated 12.05.2010 causing revocation/
withdrawal of the regularisation of their services and,
the Letter dated 19.06.2009 by which their
regularization was made subject to approval of the Board
of Director was never served upon them and such orders
could come to their knowledge only after the counter
affidavit was filed. The petitioners also filed a petition
seeking amendment of the writ petition to incorporate
specific challenge to such orders. This Court vide Order
dated 19.01.2023 while disposing of W.P.(C) No.7983 of
2010, passed the following order:
“1. Heard Mr. Palit, learned Senior Advocate for the
Petitioners and Mr. Mishra, learned Senior Advocate
for the Opposite Party No.2.
2. The Petitioner Nos.1 to 6, who are working as Peons
and Petitioner No.7, who is working as Watchman
under Opposite Party No.2-Corporation, approached
this Court seeking a direction not to revoke their
regularization order at Annexure-4 series.
3. The said orders are quoted hereunder for
convenience of ready reference.
“The Orissa State Police Housing & Welfare Corporation
Ltd., Janapath, Bhoinagar, Bhubaneswar-22W.P.(C) No.2846 of 2023 Page 13 of 80
Office Order No.5449/OPHWC Date: 19.06.2009The ad hoc services of the following Peons/Orderly
Peons are regularized against the available
sanctioned posts in orders of their seniority in the
gradation list in the scale of pay Rs.2550-55-2660-
60-3200 with D.A. and other allowances as
admissible from time to time w.e.f. the date of issue
of this order. They will be on probation for one year from
the date of their regularization:
1. Sri Trilochan Madhual Orderly Peon
2. Sri Pramod Kumar Jena -do-
3. Sri Rabindra Nath Barik -do-
4. Sri Mahabir Das -do-
5. Sri Krupasindhu Pihan -do-
6. Sri Maheswar Behera -do-
7. Sri Kartika Ch. Swain -do-
8. Sri Prasanta Kumar Behera -do-
Sd/-
Chairman-cum-Managing Director
***”
“The Orissa State Police Housing & Welfare Corporation
Ltd., Janapath, Bhoinagar, Bhubaneswar-22Office Order
No.E-38/06/5451/OPHWC, Bhubaneswar
Date: 19.06.2009The ad hoc services of Sri Bhim Bahadur Ale watchman is
regularized against one sanctioned post of Watchman inW.P.(C) No.2846 of 2023 Page 14 of 80
the scale of pay Rs.2550-55-2660-60-3200 with D.A and
other allowances as admissible from to time with effect
from the date of issue of this order.
Sd/-
Chairman-cum-Managing Director
***”
4. In consideration thereof by order dated 14.05.2010
while issuing notice, this Court directed as under:
“If the Petitioners are continuing in the regular post,
they shall continue in the same post until further
order.”
5. It is stated at the Bar that the Petitioners are
continuing in terms of the order passed by this
Court, save and except Petitioner No.7 who has
retired on 30.11.2019.
6. A counter affidavit has been filed by the Corporation
controverting the allegations and a rejoinder in reply
is on record.
7. By way of amendment, the Petitioners seek to assail
the order dated 12.05.2010 though the same is
annexed to the counter affidavit as Annexure-C/2
and the said counter affidavit is filed in Court on
15.05.2017.
8. An objection has been filed to the said interlocutory
application for amendment, inter alia, on the ground
that the same will change the nature and character
of the lis. Hence, the same is liable to be rejected.
9. This Court is of the prima facie view that, in view of
the averments in the interlocutory application and
keeping in view that the Petitioners are litigating
W.P.(C) No.2846 of 2023 Page 15 of 80
since 2010 and on a conspectus of materials on
record leave should be granted, as prayed for, to file
a fresh writ petition and accordingly it is so granted.
It shall be open to the Petitioners to file such writ
petition within a period of six weeks.
10. For a period of eight weeks from today, no coercive
action shall be taken against the Petitioners keeping
in view that this Court by order dated 14.05.2010
had passed an interim order, which is still in vogue.
11. It is made clear that this Court has not expressed
any opinion regarding the merit of the matter.
12. It is brought to the notice of this Court that during
pendency of the writ petition, Petitioner No.7 has
retired on 30.11.2019. It shall be open to the said
Petitioner to pursue his remedy in the proposed fresh
writ petition, which shall be considered on its own
merit.
13. The writ petition is accordingly disposed of.
14. Urgent certified copy of this order be issued as per
rules.”
2.13. Hence, the present writ petition.
Hearing:
3. On being noticed, the opposite parties have filed counter
affidavit. Pleadings, being completed and exchanged
amongst the counsel for respective parties, on consent of
counsel for the parties, this matter is taken up for final
hearing.
W.P.(C) No.2846 of 2023 Page 16 of 80
3.1. Accordingly, heard Sri Subir Palit, learned senior
counsel along with Ms. Ananya Pradhan, learned
counsel appearing for the petitioners and Ms. Saswata
Pattnaik, learned Additional Government Advocate
appearing for the State and Sri Girija Prasanna Dutta,
learned Advocate along with Sri Kaibalya Manichandan
Bhuyan, learned counsel appearing for opposite party
No.2 and the matter stood reserved for preparation and
pronouncement of Judgment.
Rival contentions and submissions:
4. Sri Subir Palit, learned senior counsel appearing for the
petitioners submitted that the objection raised at a
belated stage by the opposite parties that the provisions
of the Odisha Reservation of Vacancies in Posts and
Services (for Scheduled Castes and Scheduled Tribes)
Act, 1975 (for short, “ORV Act“), being not followed at
the time of engagement of the petitioners as ad hoc
employees, Office Orders according their regularisation
in service were liable to be withdrawn has no foundation
to be sustained.
4.1. A conjoint reading of Sections 3, 5, 9 and 10 of the ORV
Act, 1975 would lead to irresistible construction that the
applicability of said Act shall normally be initiated from
the very initial stage of recruitment. For the defect in
following procedure by the authorities the employees
W.P.(C) No.2846 of 2023 Page 17 of 80
who have served the Corporation for a considerable
period of their lives should not be subjected to civil and
evil consequences.
4.2. In the case at hand, the petitioners being ad hoc
appointees, their appointments have matured into
regular appointment in due course of time and long
continuation in service by virtue of principles of equity,
justice and good conscience. The initial ad hoc
appointment of the petitioners was not subjected to the
provisions of ORV Act, 1975 notwithstanding the fact of
applicability or non-applicability of provisions of said
statute was within the knowledge of the appointing
authority. As a consequence, such a plea of non-
application of ORV Act, 1975 at the time of consideration
of the prayer for regularization is not at all justiciable in
law since the petitioners cannot suffer for the lapses, if
any, of the authorities.
4.3. It is urged that the State-Authority/Corporation, being
model employer, cannot be allowed to shun its
responsibilities towards the petitioners, who have been
exploited for a considerable length of time by extracting
their services and the service records of the petitioners
have been adjudged unblemished by the Selection
Committee. Having rendered services for over two
decades at the time of consideration for regularization in
service and three decades as of date, on specious plea
W.P.(C) No.2846 of 2023 Page 18 of 80
that the provisions of the ORV Act, 1975, was not
followed by the authorities concerned, the petitioners’
orders of regularization could not have been withdrawn.
4.4. Sri Subir Palit, learned Senior Advocate assisted by Ms.
Ananya Pradhan, learned Advocate vehemently
contended that in view of provisions contained in Section
3 of the ORV Act, 1975, the case of the petitioners fall
within the ken of exclusion clause thereunder.
4.5. It is submitted that concept of regularization derives its
roots from the principles of equity, justice and fairness.
The essence of employment and the rights conferred
thereof on the petitioners cannot be merely determined
by the initial terms of appointment when the actual
course of employment has evolved significantly over a
period of time. Hence, rendering service continuously for
considerable period (approximately three decades by
now) has transcended the ad hoc employment for
consideration to be brought over to regular
establishment. Continuous service of the petitioners
against vacant sanctioned posts as ad hoc appointees
and their selection through a process of selection
constitute a substantive departure from the temporary
and ad hoc nature of their initial appointment. Hence,
their service conditions warrant reclassification from
temporary ad hoc to regular.
W.P.(C) No.2846 of 2023 Page 19 of 80
4.6. Sri Subir Palit, learned Senior Advocate has made suave
submission that since similarly circumstanced
employees had already been considered and regularized
in the service, the petitioners should not have been
treated differently. The act of regularizing the services of
some employees and not regularizing the services of
some others is indisputably discriminatory and falls foul
of Article 14 of the Constitution. Such an act of
discrimination lacks a justifiable nexus with the object
sought to be achieved by the scheme of regularization.
Therefore, the action of the opposite parties is tainted
with not only arbitrariness but also the same is
unconstitutional.
4.7. Cogent reason being not assigned, as is contended by Sri
Subir Palit, learned Senior Advocate, the impugned
Orders withdrawing the regularization of petitioners is
arbitrary exercise of power. Such an action behind the
back of the petitioners without even serving the office
order thereon is liable to be deprecated. It came to the
knowledge of the petitioners through the counter
affidavit filed by the opposite party-Corporation in
W.P.(C) No.7983 of 2010.
4.8. In this context, it is submitted that an order passed by
an authority without stating the reason for its action is
direct violation of the principles of natural justice. Any
subsequent explanation cannot sanctify the order. An
W.P.(C) No.2846 of 2023 Page 20 of 80
order bereft of reasons fails to meet the basic ingredients
of principles of natural justice and is, therefore,
inherently flawed, rendering it indefensible.
4.9. In support of the above submission, Mr. Subir Palit,
learned senior counsel appearing for the petitioners has
relied on the following decisions:
(i) Vinod Kumar and others Vrs. Union of India and
others, reported in (2024) 1 S.C.R. 1230=(2024) 9
SCC 327.
(ii) Ravi Verma and others Vrs. Union of India and
others, reported in 2018 SCC OnLine SC 3860.
(iii) Raman Kumar and others Vrs. Union of India and
others, reported in 2023 SCC OnLine SC 1018.
(iv) Mohinder Singh Gill and another Vrs. The Chief
Election Commissioner, New Delhi, reported in AIR
1978 SC 851= (1978) 1 SCC 405.
(v) Harbanslal Sahnia Vrs. Indian Oil Corporation Ltd.,
reported in (2003) 2 SCC 107.
4.10. Sri Subir Palit has referred to paragraphs 5, 6, 7 and 8
of Vinod Kumar and others Vrs. Union of India and others
(supra), wherein the Hon’ble Supreme Court has been
pleased to observe as follows:
“5. Having heard the arguments of both the sides, this
Court believes that the essence of employment and
the rights thereof cannot be merely determined by
the initial terms of appointment when the actual
course of employment has evolved significantly over
W.P.(C) No.2846 of 2023 Page 21 of 80
time. The continuous service of the appellants in the
capacities of regular employees, performing duties
indistinguishable from those in permanent posts,
and their selection through a process that mirrors
that of regular recruitment, constitute a substantive
departure from the temporary and scheme-specific
nature of their initial engagement. Moreover, the
appellants’ promotion process was conducted and
overseen by a Departmental Promotional Committee
and their sustained service for more than 25 years
without any indication of the temporary nature of
their roles being reaffirmed or the duration of such
temporary engagement being specified, merits a
reconsideration of their employment status.
6. The application of the judgment in State of
Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 by the
High Court does not fit squarely with the facts at
hand, given the specific circumstances under which
the appellants were employed and have continued
their service. The reliance on procedural formalities
at the outset cannot be used to perpetually deny
substantive rights that have accrued over a
considerable period through continuous service.
Their promotion was based on a specific notification
for vacancies and a subsequent circular, followed by
a selection process involving written tests and
interviews, which distinguishes their case from the
appointments through back door entry as discussed
in State of Karnataka Vrs. Umadevi (3), (2006) 4
SCC 1.
7. The judgment in State of Karnataka Vrs. Umadevi
(3), (2006) 4 SCC 1 also distinguished between
“irregular” and “illegal” appointments underscoring
W.P.(C) No.2846 of 2023 Page 22 of 80
the importance of considering certain appointments
even if were not made strictly in accordance with the
prescribed Rules and Procedure, cannot be said to
have been made illegally if they had followed the
procedures of regular appointments such as conduct
of written examinations or interviews as in the
present case. Para 53 of State of Karnataka Vrs.
Umadevi (3), (2006) 4 SCC 1 is reproduced
hereunder:
„53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in State of Mysore
Vrs. S.V. Narayanappa, 1966 SCC OnLine SC
23, R.N. Nanjundappa Vrs. T. Thimmiah, (1972)
1 SCC 409 and B.N. Nagarajan Vrs. State of
Karnataka, (1979) 4 SCC 507 and referred to in
para 15 above, of duly qualified persons in
duly sanctioned vacant posts might have been
made and the employees have continued to
work for ten years or more but without the
intervention of orders of the courts or of
tribunals. The question of regularisation of the
services of such employees may have to be
considered on merits in the light of the
principles settled by this Court in the cases
abovereferred to and in the light of this
judgment. In that context, the Union of India,
the State Governments and their
instrumentalities should take steps to
regularise as a one-time measure, the services
of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts
but not under cover of orders of the courts or of
tribunals and should further ensure thatW.P.(C) No.2846 of 2023 Page 23 of 80
regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled
up, in cases where temporary employees or
daily wagers are being now employed. The
process must be set in motion within six
months from this date. We also clarify that
regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further
bypassing of the constitutional requirement and
regularising or making permanent, those not
duly appointed as per the constitutional
scheme.‟
8. In light of the reasons recorded above, this Court
finds merit in the appellants‟ arguments and holds
that their service conditions, as evolved over time,
warrant a reclassification from temporary to regular
status. The failure to recognise the substantive
nature of their roles and their continuous service
akin to permanent employees runs counter to the
principles of equity, fairness, and the intent behind
employment regulations.”
4.11. To countenance his submission on discriminatory
treatment in regularisation of service, he referred to
paragraphs 4, 8, 9, 12 and 13 of Ravi Verma and others
Vrs. Union of India and others (supra), wherein the
observations of Hon’ble Supreme Court runs as follows:
“4. The appellants were appointed as casual employees
in the Income Tax Department in the year 1993-1994
since then they were working continuously. On 30th
January 2004 with respect to other similarlyW.P.(C) No.2846 of 2023 Page 24 of 80
situated employees, temporary status was granted.
The respondent No. 4 on 30th December 2004
recommended the case of the appellants for
temporary status/regularization. Again it was
recommended for regularization on 14.06.2005. In
the meantime, the decision in the State of Karnataka
Vrs. Uma Devi, (2006) 4 SCC 1 was pronounced by
this Court, the same provided that the employees
who had rendered services continuously for ten
years without the cover of the court‟s order be
regularized as the one-time measure.
8. Again on 07.11.2007/19.11.2007 information was
forwarded along with a recommendation for the
regularization of services of the appellant and again
on 01.01.2008 and 31.01.2008 also,
recommendations were made. However services
were not regularized, through Chief Commissioner,
Income Tax, U.P. West, Ghaziabad regularized
similarly placed 88 casual employees on
30.01.2009. The Chief Commissioner, Income Tax
Orissa, Bhubneshwar also regularized similarly
situated eight employees on 12.03.2009; orders of
regularization have been placed on record
respectively as Annexures P1 and P2. However,
similar treatment was not accorded to the
appellants.
9. On 01.06.2009 appellants 1, 2 and 3 were
sanctioned minimum of regular pay scale of Group D
employees with Dearness Allowance in accordance
with DoPT Circular dated 31.05.2004 and in terms
of the orders of CCIT dated 07.11.2007 and
06.12.2007 on conferral temporary of status on the
employees. On 22.09.2009, Chief Commissioner,W.P.(C) No.2846 of 2023 Page 25 of 80
Income Tax, Kolkata also regularized 111 similarly
situated casual employees and 17 employees on
15.10.1990 and Chief Commissioner, Income Tax,
Lucknow regularized 59 similarly situated casual
employees on 22.01.2010. There was further
regularization of 35 employees of the office of Chief
Commissioner, Income Tax, Patna on 20.08.2010.
However, the claim of the appellants was rejected by
respondent no. 3 though they had served
continuously for more than ten years and fulfill the
requisite criteria for the purpose of regularization in
terms of the circulars of DoPT and the decision
rendered by this Court in Uma Devi (supra). The
appellants have also given the vacancy position.
12. Having heard learned counsel for the parties at
length, we are of the considered opinion that
appointments were only irregular one, this Court
observed in para 53 Uma Devi (supra) thus:
„53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V.
Narayanappa (supra), R.N. Nanjundappa
(supra), and B.N. Nagarajan (supra), and
referred to in paragraph 15 above, of duly
qualified persons in duly sanctioned vacant
posts might have been made and the
employees have continued to work for ten
years or more but without the intervention of
orders of courts or of tribunals. The question of
regularization of the services of such
employees may have to be considered on
merits in the light of the principles settled by
this Court in the cases above referred to and inW.P.(C) No.2846 of 2023 Page 26 of 80
the light of this judgment. In that context, the
Union of India, the State Governments, and
their instrumentalities should take steps to
regularize as a one time measure, the services
of such irregularly appointed, who have
worked for ten years or more in duly
sanctioned posts but not under cover of orders
of the courts or of tribunals and should further
ensure that regular recruitments are
undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases
where temporary employees or daily wagers
are being now employed. The process must be
set in motion within six months from this date.
We also clarify that regularization, if any
already made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further bypassing of the
constitutional requirement and regularizing or
making permanent, those not duly appointed
as per the constitutional scheme.‟
13. In view of the aforesaid decision, the circulars and
regularization of the similarly situated employees at
other places and various recommendation that were
made the services of the appellants ought to have
been regularized in the year 2006; discriminatory
treatment has been meted out to them. As per the
decision of Uma Devi (supra), they were entitled to
regularization of services; they did not serve under
the cover of court’s order. Illegality has been
committed by not directing regularization of
services.”
W.P.(C) No.2846 of 2023 Page 27 of 80
4.12. Reference has also been made to paragraphs 4 and 8 of
Raman Kumar and others Vrs. Union of India and others
(supra), wherein the following are the observations:
“4. The matter arises out of regularization of the
employees. The Chief Commissioner of Income Tax in
his report dated 14.02.2013 found that, in the
exercise conducted in pursuance of the judgment of
this Court in the case of Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1, though 65
employees were found to be entitled for
regularization, only 35 employees were regularized.
This was done since only 35 vacancies were
available.
8. Indisputably, the appellants herein have completed
service of more than ten years. Even this Court in
the case of Ravi Verma Vrs. Union of India (Civil
Appeal No(s).2795-2796 of 2018) decided on
13.03.2018 found that the act of regularizing the
services of some employees and not regularizing the
services of the others is discriminatory and violative
of Article 14 of the Constitution of India.”
4.13. Relying on Mohinder Singh Gill and another Vrs. The
Chief Election Commissioner (supra), it was contended
that no reason can be taken into consideration which is
sought to be supplemented in the counter affidavit to
justified orders of withdrawal of regularisation in service.
the Hon’ble Supreme Court in paragraph 8 of said
decision observed as follows:
W.P.(C) No.2846 of 2023 Page 28 of 80
“8. The second equally relevant matter is that when a
statutory functionary makes an order based on
certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a
challenge, get validated by additional grounds later
brought out. We may here draw attention to the
observations of Bose, J. in Commr. of Police, Bombay
Vrs. Gordhandas Bhanji, 1951 SCC 1088 = AIR
1952 SC 16:
„Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of
explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the actings and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself.‟ ***”
4.14. In the case of Harbanslal Sahnia Vrs. Indian Oil
Corporation Ltd. (supra), the Hon’ble Supreme Court
observed as follows:
“7. So far as the view taken by the High Court that the
remedy by way of recourse to arbitration clause was
available to the appellants and therefore the writ
petition filed by the appellants was liable to be
dismissed is concerned, suffice it to observe that the
rule of exclusion of writ jurisdiction by availability of
an alternative remedy is a rule of discretion and notW.P.(C) No.2846 of 2023 Page 29 of 80
one of compulsion. In an appropriate case, in spite of
availability of the alternative remedy, the High Court
may still exercise its writ jurisdiction in at least three
contingencies:
(i) where the writ petition seeks enforcement of
any of the fundamental rights;
(ii) where there is failure of principles of natural
justice; or
(iii) where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. (See Whirlpool Corpn. Vrs.
Registrar of Trade Marks, (1998) 8 SCC 1). The
present case attracts applicability of the first
two contingencies. Moreover, as noted, the
petitioners‟ dealership, which is their bread
and butter, came to be terminated for an
irrelevant and non-existent cause. In such
circumstances, we feel that the appellants
should have been allowed relief by the High
Court itself instead of driving them to the need
of initiating arbitration proceedings.”
5. Per contra, Sri Girija Prasanna Dutta, learned counsel
appearing for opposite party No.2 in continuation of
arguments advanced by him on earlier occasions,
furnished written note of submission dated 05.10.2024
which reflected as follows:
“3. That it is submitted by this opposite party
petitioners were engaged as Peon/Watchman
under this opposite party and subsequently
they were appointed on ad hoc basis andW.P.(C) No.2846 of 2023 Page 30 of 80
thereafter they raised grievance to regularize
them. Accordingly considering their long
association with the Corporation and the
requirement of their services, the present
opposite party being a model employer decided
to examine their case for absorption against
existing vacancies as per law.
4. That for the purpose of examining the cases of
the petitioners, a Selection Committee was
formed and the said Committee having found
all the petitioners are suitable, recommended
for their regularization subject to adjustment
of four reserved posts against future vacancies.
5. That keeping in view the recommendation of the
Selection Committee, this opposite party regularized
the services of the petitioners on 19.06.2009 but the
same was made subject to approval of Board of
Directors in their next meeting which was
communicated to all the petitioners.
6. That while regularizing the services of the
petitioners, the then CMD ordered that post facto
approval of the Corporation Board be taken. On
08.09.2009 the matter was placed before the Board.
The Board wanted further information on the
following:
a. Whether Govt. approval has been taken in view
of ban on recruitment to Base Level Posts?
b. Whether provisions of Odisha Reservation of
Vacancy Act, 1975 has been followed. In this
regard, Govt. of Odisha Home Department has
also asked for a report vide letter
No.41259/M&D dated 09.09.2009
W.P.(C) No.2846 of 2023 Page 31 of 80
7. That therefore the Board of Director in its meeting
dated 18.02.2010 decided as follows:
While regularizing the services of CMD ordered that
post facto approval of the Corporation Board be
taken. On 08.09.2009 the matter was placed before
the Board. The Board wanted further information on
the following:
8. Whether Govt. approval has been taken in view
of ban on recruitment to Base Level Posts?
9. Whether provisions of Odisha Reservation of
Vacancy Act, 1975 has been followed. In this
regard, Govt. of Odisha Home Department has
also asked for a report vide letter
No.41259/M&D dated 09.09.2009.
10. That as per the provision of the ORV Act, the
eight posts should come under the following
categories:
Men Women General 2 1 SC 1 1 ST 1 -- SEBC 1 1
8. That the Board of Directors therefore did not accord
approval in absence of prior approval from Govt. of
Odisha and therefore the matter was referred to O.P.
No.1/State Govt. for due examination and imparting
necessary instructions but the O.P. No.1/Govt. of
Odisha instructed the Corporation to withdraw of
orders of regularization in respect of the petitioners
and accordingly as per the instruction of the oppositeW.P.(C) No.2846 of 2023 Page 32 of 80
party No.1 this opposite party withdrawn the
regularization orders on 12.05.2010.
9. That it is also submitted by this O.P that out of 12
numbers of Peons as per the restructuring which
was made in the year 2016, there already exits 05
numbers of regular Peons who were appointed way
back in the year 1990 and one watchman has been
regularized in 151 Board Meeting held on
15.05.2023.
Thus, at present there are 07 numbers of posts of
Sanctioned Peon posts and the remaining 06
numbers of posts of Watchman are available but as
the present petitioners who are ad-hoc peons are
continuing in the post of Peons by virtue of the
direction of this Hon‟ble Court, so there is no
sanctioned vacancy for peon posts.
Similarly, as regards to the post of watchman,
though there are 06 nos. of sanctioned vacant post
out of which there was one regular watchman but as
in the meantime the regular watchman was
superannuated, so the corporation in its 151st
Meeting held on 15.05.2023 after applying ORV Act
has already regularize the services of the peons.
10. That it is submitted this deponent that since at
present there are 07 nos. of posts of Sanctioned
Peon posts are available (by virtue of the direction of
this Hon‟ble Court the petitioner No.1 to 6 are
continuing in the said post). So after application of
ORV Act, the following posts are available for
regularization:
Total Vacant Post (as per the direction of this Hon’ble
Court the present petitioner No.1 to 6 are continuing
W.P.(C) No.2846 of 2023 Page 33 of 80
and 05 numbers of regular peons are already
existing) so there are altogether 12 posts.
As per ORV Act the following numbers of post are
reserved.
S.T. = 12 x 22.5% = 2.7 ≈ 3 posts
S.C = 12×16.25% = 1.95 ≈ 2 post
SEBC = 12×11.25% 1.35 ≈ 1 postSince 05 nos. of peons are already working under
regular basis under 04 unreserved categories and
one SC category, so there was 02 nos. of posts of
peon are available under General category and one
post of Peon under S.C. category are available.
Since, the present petitioners No.1 to 6 are
functioning as Peons under the un-reserved category
as per the direction of this Hon‟ble Court, so, there is
no vacancy available with the Corporation for
regularisation.”
5.1. Sri Girija Prasanna Dutta, learned advocate for the
opposite party No.3 sought to justify the orders of
withdrawal of office orders regularising the services of
the petitioners.
Legal position:
6. Before proceeding with the matter, it is felt apposite to
discuss the legal position with respect to regularisation
of service of employees as set out by different Courts.
6.1. To begin with it is apt to refer to the anxious
consideration shown by the Madras High Court in N.W.P.(C) No.2846 of 2023 Page 34 of 80
Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016,
vide Judgment dated 22.04.2022 made with respect to
exploitation of service. The following benevolent
observation has been made by said Court in favour of
employees, whose services have been utilized by the
Government for a long time:
“18. If the Courts cannot give direction for their
regularisation of service, in the constrained legal
scenario what other remedies that are available to
these unfortunate employees, who have been
engaged in service for public purpose, without
having any definite future to hold on? These
petitioners cannot be kept on the tenterhooks
of their employment for years together, by
brushing aside and discarding their concerned
yearning for a definite future, with
unresponsive indifference.
19. A welfare State grounded on constitutional
values, cannot come up with apathetic and
callous stand that despite continued
employment of these petitioners for years
together, no semblance of right is available to
them. Such stand by the State is opposed to
constitutional values as enshrined in Article 21 of
the Constitution of India. The Courts of course have
held that equal opportunity must be provided in
public employment and entry through back door
should be discountenanced. When Article 21, being
violated by the State, action towards its servants,
the consideration of the Government must primarily
be focussed on alleviating legitimate grievances of
its employees. Even assuming that the recruitment of
W.P.(C) No.2846 of 2023 Page 35 of 80
these writ petitioners had not been fully in
consonance with the procedure for appointment in
Government services, the fact remained that these
persons have been consciously appointed by the
Government for implementing public projects and the
work has been extracted from them continuously for
several years. It is therefore, not open to the
Government after a period of time to turn around
and contend that these writ petitioners have no right
at all to seek any kind of guarantee for their future.
20. In the opinion of this Court, continued
employment for several years, even on a
projects meant to serve the State as a whole,
certain rights would definitely accrue to them,
atleast to the extent of making a claim for
formulation of a scheme/towards their
absorption. This Court is quite conscious of the fact
that the Government has been benevolent and had
come up with several schemes in the past and
directed regularisation of services of thousands of
employees over a period of time. Such benevolence
ought to permeate to the lowest levels to take within
its sweep the desperate cry of the petitioners as
well. As in the sublime words of the father of nation,
Mahatma Gandhi, „A nation‟s greatness is measured
by how it treats its weakest members‟. Merely
because these writ petitioners have been employed
in the projects, the policy makers may not shut their
mind and close their eyes to their precarious plight
having to serve public purpose but left in the lurch
and unprotected, at the end of the day.”
6.2. Learned Single Judge of this Court in Dr. Prasana Kumar
Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005
W.P.(C) No.2846 of 2023 Page 36 of 80
[reported at 2016 (I) ILR-CUT 373], made the following
observation:
“7. In Binan Kumar Mohanty Vrs. Water and Land
Management Institute (WALMI), 2015 (I) OLR 347
referring to Kapila Hingorani Vrs. State of Bihar,
(2003) 6 SCC 1 the apex Court held that the
Government companies/public sector undertakings
being „States‟ would be constitutionally liable to
respect life and liberty of all persons in terms of
Article 21 of the Constitution of India. Therefore, if
the petitioner has rendered service for around 20
years, keeping in view the ratio decided in Kopila
Hingorani (supra), this Court issues direction to the
opposite parties to mitigate the hardship of the
employees. Financial stringency is no ground for not
issuing requisite directions when there is violation of
fundamental rights of the petitioner. Allowing a
person to continue for a quite long period of 20 years
of service and exploiting him on the pretext of
financial crunch in violation of Article 21 of the
Constitution of India is sheer arbitrariness of the
authority which is highly condemnable.
8. In Narendra Kumar Ratha and Others Vrs. State of
Odisha and Others, 2015 (I) OLR 197, this Court has
taken into consideration the object of Article 16 of
the Constitution of India to create a constitutional
right to equality of opportunity and employment in
public offices. The word „employment or
appointment‟ cover not merely the initial
appointment, but also other attributes like salary,
increments, revision of pay, promotion, gratuity,
leave pension and age of superannuation etc.
Appointment to any post under the State can only be
W.P.(C) No.2846 of 2023 Page 37 of 80
made in accordance with the provisions and
procedure envisaged under the law and guidelines
governing the field.
9. In Prabodh Verma and Others Vrs. State of U.P. and
Others, (1984) 4 SCC 251, the apex Court held that
Article 16 is an instance of the application of the
general rule of equality laid down in Article 14, with
special reference to the opportunity for appointment
and employment under the Government.
10. Similar view has also been taken by the apex Court
in Km. Neelima Mishra Vrs. Harinder Kaur Paintal
and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402
and E.P. Royappa Vrs. State of Tamil Nadu and
Another, (1974) 4 SCC 3. Clause (1) of Article 16
guarantees equality of opportunity for all citizens in
the matters of employment or appointment to any
office under the State. The very concept of equality
implies recourse to valid classification for preference
in favour of the disadvantaged classes of citizens to
improve their conditions so as to enable them to
raise themselves to positions of equality with the
more fortunate classes of citizens. This view has
also been taken note of by the apex Court in the
case of Indra Sawhney Vrs. Union of India, 1992
Supp. (3) SCC 217 = AIR 1993 SC 477.”
6.3. The case of Prasana Kumar Mishra (supra) was carried in
appeal before the Division Bench, giving arise to W.A.
No.4 of 2016, which was dismissed vide Order dated
11.12.2019. Said matter, being carried further to the
Hon’ble Supreme Court of India, vide Order dated
07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the
W.P.(C) No.2846 of 2023 Page 38 of 80
behest of Biju Patnaik University of Technology, stood
dismissed.
6.4. Showing anxiety so far as regularization of services, in a
catena of decisions the Hon’ble Supreme Court of India
has succinctly and illuminatingly dealing with the
concept of regularization, in the case of Narendra Kumar
Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, has
said as follows:
“The purpose and intent of the decision in Umadevi (3)
was therefore twofold, namely, to prevent irregular or
illegal appointments in the future and secondly, to confer
a benefit on those who had been irregularly appointed in
the past. The fact that the State of Jharkhand continued
with the irregular appointments for almost a decade after
the decision in Umadevi (3), (2006) 4 SCC 1 is a clear
indication that it believes that it was all right to continue
with irregular appointments and whenever required,
terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of exploitation
of the employees by not giving them the benefits of
regularisation and by placing the sword of
Damocles over their head. This is precisely what
Umadevi and Kesari sought to avoid.”
6.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it
has been discussed as follows:
“12. As it appears from the record itself, the case of the
petitioner is squarely covered by the exception
carved out in paragraph 53 of the judgmentW.P.(C) No.2846 of 2023 Page 39 of 80
rendered in Umadevi (3) mentioned supra. Meaning
thereby, against an existing sanctioned vacancy in
the post of Barber, the petitioner having been
engaged by following due procedure of selection in
the post of Home Guard and continued for a quite
long period, which is not disputed by the opposite
parties-State as per the pleadings available in the
counter affidavit and, as such, the petitioner is still
continuing, the same cannot be treated as an „illegal
engagement‟, rather it may be nomenclatured as an
„irregular engagement‟.
13. In State of Jammu and Kashmir Vrs. District Bar
Association, Bandipora, MANU/SC/1566/2016 =
(2017) 3 SCC 410, wherein a distinction has been
made with regard to „irregular‟ and „illegal‟
engagement, referring to the exception carved out in
Umadevi (3) mentioned supra, in paragraph 12 of
the said judgment it has been stated as follows:
„12. The third aspect of Umadevi (3) which bears
notice is the distinction between an „irregular‟
and „illegal‟ appointment. While answering
the question of whether an appointment is
irregular or illegal, the Court would have
to enquire as to whether the appointment
process adopted was tainted by the vice of
non-adherence to an essential prerequisite
or is liable to be faulted on account of the
lack of a fair process of recruitment. There
may be varied circumstances in which an ad
hoc or temporary appointment may be made.
The power of the employer to make a
temporary appointment, if the exigencies
of the situation so demand, cannot beW.P.(C) No.2846 of 2023 Page 40 of 80
disputed. The exercise of power however
stands vitiated if it is found that the exercise
undertaken
(a) was not in exigencies of administration; or
(b) where the procedure adopted was
violative of Articles 14 and 16 of the
Constitution; and/or
(c) where the recruitment process was
overridden by the vice of nepotism, bias or
mala fides.”
6.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC
OnLine Ori 267, it has been observed as follows:
“9. With regard to the regularization of the services of
the petitioners, a mention has been made in
Annexure-4 that the petitioners being irregular
recruits, their regularization is not permissible under
the State Government Rules. But this condition made
in the restructuring order in Annexure-4 so far as it
relates to the petitioners cannot be applicable in
view of the fact that the petitioners have been
appointed against regular vacancies available in the
regular scale of pay admissible to the post. But in
view of their continued service for more than 10
years, their cases are covered by the ratio of the
judgment of the apex Court in Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR
2006 SC 1806, wherein the apex Court has held that
the appointments made against temporary or ad-hoc
basis are not to be regularized. In paragraph 53 of
the said judgment, it is provided that irregular
appointment of duly qualified persons againstW.P.(C) No.2846 of 2023 Page 41 of 80
sanctioned posts, who have worked for 10
years or more can be considered on merits and
steps to be taken as one time measure to
regularize them. In Paragraph 53 of the said
judgment, the apex Court has held as follows:
„53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa and B.N.
Nagarajan and referred to in para 15 above, of
duly qualified persons in duly sanctioned
vacant posts might have been made and the
employees have continued to work for ten
years or more but without the intervention of
orders of the courts or of tribunals. The
question of regularisation of the services of
such employees may have to be considered on
merits in the light of the principles settled by
this Court in the cases above referred to and in
the light of this judgment. In that context, the
Union of India, the State Governments and
their instrumentalities should take steps to
regularise as a one-time measure, the services
of such irregularly appointed, who have
worked for ten years or more in duly
sanctioned posts but not under cover of orders
of the courts or of tribunals and should further
ensure that regular recruitments are
undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases
where temporary employees or daily wagers
are being now employed. The process must be
set in motion within six months from this date.
We also clarify that regularisation, if anyW.P.(C) No.2846 of 2023 Page 42 of 80
already made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further by-passing of the
constitutional requirement and regularising or
making permanent, those not duly appointed
as per the constitutional scheme.‟
10. The object behind the exception carved out in this
case was to permit regularization of such
appointments, which are irregular but not illegal,
and to ensure security of employment of those
persons who served the State Government and their
instrumentalities for more than ten years. Similar
question came up for consideration before the apex
Court in Civil Appeal No. 2835 of 2015 (arising out of
SLP (Civil) No. 20169 of 2013 disposed of on
13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015)
8 SCC 265]. In paragraphs 12 and 13, the apex
Court has held as follows:
„12. Elaborating upon the principles laid down in
Umadevi‟s case (supra) and explaining the
difference between irregular and illegal
appointments in State of Karnataka Vrs. M.L.
Kesari, (2010) 9 SCC 247, this Court held as
under:
„7. It is evident from the above that there is
an exception to the general principles
against “regularisation” enunciated in
Umadevi (3), if the following conditions
are fulfilled:
(i) The employee concerned should
have worked for 10 years or more in
duly sanctioned post without theW.P.(C) No.2846 of 2023 Page 43 of 80
benefit or protection of the interim
order of any court or tribunal. In
other words, the State Government
or its instrumentality should have
employed the employee and
continued him in service voluntarily
and continuously for more than ten
years.
(ii) The appointment of such employee
should not be illegal, even if
irregular. Where the appointments
are not made or continued against
sanctioned posts or where the
persons appointed do not possess
the prescribed minimum
qualifications, the appointments will
be considered to be illegal. But
where the person employed
possessed the prescribed
qualifications and was working
against sanctioned posts, but
had been selected without
undergoing the process of open
competitive selection, such
appointments are considered to
be irregular.‟
13. Applying the ratio of Umadevi‟s case, this Court
in Nihal Singh Vrs. State of Punjab, (2013) 14
SCC 65 directed the absorption of the Special
Police Officers in the services of the State of
Punjab holding as under:
„35. Therefore, it is clear that the
existence of the need for creation ofW.P.(C) No.2846 of 2023 Page 44 of 80
the posts is a relevant factor with
reference to which the executive
government is required to take
rational decision based on relevant
consideration. In our opinion, when
the facts such as the ones obtaining
in the instant case demonstrate that
there is need for the creation of
posts, the failure of the executive
government to apply its mind and
take a decision to create posts or
stop extracting work from persons
such as the appellants herein for
decades together itself would be
arbitrary action (inaction) on the part
of the State.
36. The other factor which the State is
required to keep in mind while creating or
abolishing posts is the financial
implications involved in such a decision.
The creation of posts necessarily means
additional financial burden on the
exchequer of the State. Depending upon
the priorities of the State, the allocation of
the finances is no doubt exclusively
within the domain of the legislature.
However in the instant case creation of
new posts would not create any
additional financial burden to the State as
the various banks at whose disposal the
services of each of the appellants is made
available have agreed to bear the burden.
If absorbing the appellants into the
services of the State and providing
W.P.(C) No.2846 of 2023 Page 45 of 80
benefits on a par with the police officers
of similar rank employed by the State
results in further financial commitment it
is always open for the State to demand
the banks to meet such additional
burden. Apparently no such demand has
ever been made by the State. The result
is– the various banks which avail the
services of these appellants enjoy the
supply of cheap labour over a period of
decades. It is also pertinent to notice that
these banks are public sector banks.‟***”
6.7. Reference can also be had to Amarendra Kumar
Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR
2014 SC 1716; Subrata Narayan Das Vrs. State of
Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated
12.07.2022.
6.8. In the case of Union of India Vrs. Central Administrative
Tribunal, (2019) 4 SCC 290 the following is the
observation:
“25. The Court noted in the above judgment that if a strict
and literal interpretation was given to the decision in
Umadevi, no employee from the State of Jharkhand
appointed on an irregular basis could ever be
regularized as the State was formed on 15
November 2000 and the cut-off date had been fixed
as 10 April 2006. The intent of the Court was to
grant similarly-placed employees who had put the
requisite years of service as mandated by Umadevi,
the benefit of regularization. The Court thus heldW.P.(C) No.2846 of 2023 Page 46 of 80
that the Jharkhand Sarkar ke Adhinasth Aniyamit
Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa
Niyamitikaran Niyamawali, 2015 („the
Regularisation Rules‟) must be interpreted in a
pragmatic manner and employees of the State who
had completed 10 years of service on the date of
promulgation of the rules, ought to be regularized. In
doing so, the Court ensured that employees in the
State of Jharkhand who had completed the same
years of service as employees from other States, are
granted parity in terms of regularization. The spirit
of non-discrimination and equity runs through the
decisions in Umadevi [(2006) 4 SCC 1], ML Kesari
[(2010) 9 SCC 247] and Narendra Kumar Tiwari
[(2018) 8 SCC 238].
26. In this background, the issue which now arises
before this Court is in regard to the effective direction
which would govern the present case. The High
Court has directed the Union of India to absorb the
casual workmen, if it is not possible at the Institute
in question, then in any other establishment. The
latter part of the direction, as we have already
noted, cannot be sustained. Equally, in our opinion,
the authorities cannot be heard to throw their hands
in despair by submitting that there are no vacancies
and that it had already regularized such of the
persons in the seniority list, who reported for work.
The Tribunal has entered a finding of fact that this
defence is clearly not borne out of the record.
Accordingly, we are of the view that having decided
to implement the decision of the Tribunal, which was
affirmed by the High Court, the Union of India must
follow a rational principle and abide strictly by the
seniority list in proceeding to regularize the workmenW.P.(C) No.2846 of 2023 Page 47 of 80
concerned. Accordingly, we direct that the case for
regularization shall be considered strictly in
accordance with the seniority list in pursuance of the
directions which were issued by the Tribunal and
confirmed by the High Court and such of the
persons, who are available for regularization on the
basis of vacancies existing at present, shall be
considered in accordance with law. The Tribunal has
denied back-wages but has ordered a notional
fixation of pay and allowances. While affirming that
direction, we also direct that persons who have
crossed the age of superannuation will be entitled to
the computation and payment of their retiral dues on
that basis. This exercise shall be carried out within a
period of three months from the receipt of a copy of
the judgment. If it becomes necessary to grant age
relaxation to the concerned workmen, the Appellants
shall do so.”
6.9. In Vibhuti Shankar Pandey Vrs. State of Madhya
Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it
has been stated as follows:
“*** The Division Bench rightly held that the learned
Single Judge has not followed the principle of law as
given by this Court in Secretary, State of Karnataka and
Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as
initial appointment must be done by the competent
authority and there must be a sanctioned post on
which the daily rated employee must be working.
***”
W.P.(C) No.2846 of 2023 Page 48 of 80
6.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of
Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of
the Judgment runs as follows:
“7. Before delving into the niceties of the order passed
by the tribunal, this Court deems it proper to
examine the claims of the petitioner on the basis of
the factual matrix available on record itself. On the
basis of the pleadings available before this Court, no
doubt the petitioner had approached the tribunal
seeking regularization of his services.
Regularization in service law connotes official
formalisation of an appointment, which was
made on temporary or ad hoc or stop gap or
casual basis or the like, in deviation from the
normal rules of applicable norms of
appointment. Such formalisation makes the
appointment regular. The ordinary meaning of
regularisation is “to make regular” according to The
Shorter Oxford English Dictionary, 3rd Edition, and
according to Black‟s Law Dictionary, 6th Edition, the
word “regular” means:
„Conformable to law. Steady or uniform in course,
practice, or occurrence; not subject to unexplained or
irrational variation. Usual, customary, normal or
general. Gerald Vrs. American Cas. Co of Reading,
Pa., D.C.N.C., 249 F, Supp. 355, 357. Made
according to rule, duly authorised, formed after
uniform type; built or arranged according to
established plan, law, or principle. Antonym of
“casual” or “occasional,” Palle Vrs. Industrial
Commission, 79 Utah 47, 7 P. 2d. 248, 290.‟W.P.(C) No.2846 of 2023 Page 49 of 80
8. The above being the meaning of “regular”, as per the
common parlance given in dictionary, in B.N.
Nagarajan, Vrs. State of Karnataka, AIR 1979 SC
1676 = (1979) 4 SCC 507, the apex Court held that
the effect of such regularization would depend on
the object or purpose for which the regularization is
made or the stage at which it is made. Once
regularized, the procedural infirmities which
attended the appointment are cured. Regularization,
however, does not necessarily connote permanence.
9. The word „regular‟ or „regularisation‟ do not
connote permanence and cannot be construed
so as to convey an idea of the nature of tenure
of appointments. They are terms calculated to
condone any procedural irregularities and are
meant to cure only such defects as are
attributable to methodology followed in
making the appointments. Relying on the
Judgments of the apex Court in B.N. Nagarajan Vrs.
State of Karnataka, AIR 1979 SC 1676 = (1979) 4
SCC 507, the Constitution Bench of the apex Court in
State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1
has also taken the same view, which has also been
followed by the apex Court in Hindustan Petroleum
Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2
SCC 717 and also in Hindustan Aeronautics Ltd.
Vrs. Dan Bahadur Singh, (2007) 6 SCC 207.
10. Temporary or ad hoc or stop gap or casual basis or
the like appointments are made for various reasons.
An emergent situation might make it necessary to
make such appointments. Since the adoption of the
normal method of regular recruitment might involve
considerable delay regulating in failure to tackle the
W.P.(C) No.2846 of 2023 Page 50 of 80
emergency. Sometimes such appointments were
to be made because although extra hands are
required to meet the workload, there are no
sanctioned posts against which any regular
recruitment could be made. In fact in the case
of ad hoc or casual appointees, the
appointments, are in the majority of cases, not
against sanctioned posts and the appointments
are made because of the necessity of workload
and the constraints of sanctioning such post
(mainly on financial consideration) on
permanent basis. Needless to say that filling up
vacancies against sanctioned posts by
regularisation is against the constitutional provisions
of equality of opportunity in the matter of public
employment violating Articles 14 and 16 of the
Constitution by not making the offer of employment
to the world at large and allowing all eligible
candidates equality of opportunity to be considered
on merits. If that be so, considering the emergent
necessity of filling up of vacancies and allowing the
petitioner to continue for a quite long period, even if
with one day break in service, cannot be stated to be
a reasonable one, rather, this is an unfair and
unreasonable action of the authority concerned.
***
12. In view of above constitutional philosophy, whether
Courts can remain as mute spectator, is a matter to
be considered to achieve the constitutional goal in
proper perspective. But all these questions had come
up for consideration and decided by the Constitution
Bench of the apex Court in Umadevi (3) mentioned
supra. The factual matrix of the case in Umadevi (3)
W.P.(C) No.2846 of 2023 Page 51 of 80
arose for consideration from a judgment of
Karnataka High Court. In some of the cases, the
Karnataka High Court rejected the claims of
persons, who had been temporarily engaged as
daily wagers but were continued for more than 10
years in the Commercial Taxes Department of the
State of Karnataka for regularization as permanent
employees and their entitlement to all the benefits of
regular employees. Another set of civil appeals arose
from the order passed by the same High Court on a
writ petition challenging the order of the government
directing cancellation of appointments of all casual
workers/daily rated workers and seeking a further
direction for the regularization of all such daily wage
earners engaged by the State or local bodies. These
claims were rejected by the Division Bench of the
Karnataka High Court on appeal from the judgment
of the learned Single Judge. The reason for the
mater being considered by the Constitution Bench
arose because of two earlier orders of reference
made by a Bench of two-Judge and subsequently by
a Bench of three-Judge- Secretary, State of
Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and
Secretary, State of Karnataka Vrs. Umadevi (2)
(2006) 4 SCC 44, respectively, as they noticed the
conflicting opinions expressed by the earlier 3 Bench
judgments in relation to regularization.”
6.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C)
No. 19951 of 2020, vide Judgment dated 09.09.2021, a
Single Bench of this Court has made the following
observation:
W.P.(C) No.2846 of 2023 Page 52 of 80
“8. It is worthwhile to mention here that the Court comes
into picture only to ensure observance of
fundamental rights, and to ensure the rule of law
and to see that the executive acts fairly and gives a
fair ideal to its employees consistent with
requirements of Articles 14 and 16 of the
Constitution, and that the authority should not
exploit its employees nor should it seek to take
advantage of the helplessness and misery of either
the unemployed persons or the employees, as the
case may be. For this very reason, it is held that a
person should not be kept in contractual, temporary
or ad hoc status for a long period. Where a
contractual, temporary or ad hoc appointment is
continued for long, the Court presumes that there is
need of a regular post and accordingly directs for
regularization. While issuing direction for
regularization, the Court must first ascertain
the relevant fact, and must be cognizant of the
several situations and eventualities that may
arise on account of such direction. If for any
reason, a contractual, ad hoc or temporary
employee is continued for a fairly long spell,
the authorities must consider his case for
regularization, provided he is eligible and
qualified according to rules and his service
record is satisfactory and his appointment
does not run counter to the reservation policy
of the State. Even though a casual labourer is
continued for a fairly long spell, say two or three
years, a presumption may arise that there is regular
need for his service. In such a situation, it becomes
obligatory for the concerned authority to examine the
feasibility of his regularization. While doing so, theW.P.(C) No.2846 of 2023 Page 53 of 80
authorities ought to adopt a positive approach
coupled with empathy for the person.”
6.12. Aforesaid Judgment rendered by the Single Judge of this
Court in Patitapaban Dutta Dash (supra) got the seal of
approval of this Court being carried in appeal bearing
W.A. No. 777 of 2021 before the Division Bench, which
came to be disposed of vide Judgment dated 12.04.2023
[see, (2023) (I) ILR-CUT 906]. While directing the State of
Odisha to implement the direction of the Single Judge
“in letter and spirit”, this Court in the ultimate held as
follows:
“44. Going by the above legal position, in the present
cases, at the highest, the respondents could be
considered to be „irregularly‟ appointed and
therefore would, even on the touchstone of Umadevi
(supra), be eligible for regularization. The law in M.L.
Kesari (supra), has been reiterated in Amarkant Rai
Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain
Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR
2018 SC 233 and Rajnish Kumar Mishra Vrs. State
of U.P., (2019) 17 SCC 648.”
6.13. Noticing the Judgment of the Hon’ble Supreme Court in
the case of Secretary, State of Karnataka and Others Vrs.
Umadevi (3), (2006) 4 SCC 1, in Niranjan Nayak Vrs.
State of Odisha & Others, 2023 (I) OLR 407 the
observation of this Court runs as follows:
“12. Similarly, in the case of Amarendra Kumar
Mahapatra and Others Vrs. State of Odisha andW.P.(C) No.2846 of 2023 Page 54 of 80
Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the
Supreme Court was of the opinion that the
appellants were entitled to regularization in
service having regard to the fact that they have
rendered long years of service on ad hoc basis.
13. In the case at hand, it can be ascertained that the
petitioner was appointed against a substantive
vacant post and he had been discharging his duties
in the said post since 1993. The appointment was
made on an ad hoc basis and was extended from
time to time. Since the petitioner was appointed
against substantive vacancy and the post was
sanctioned by higher authorities, the petitioner
should have been extended the benefit of
regulatisation like other similarly situated persons.”
6.14. This Court wishes to take notice of recent view of
Hon’ble Supreme Court of India expressed in the case of
Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826,
wherein it has been observed as follows:
“20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize
employees who have rendered long years of
service fulfilling ongoing and necessary
functions of the State or its instrumentalities.
The said judgment sought to prevent backdoor
entries and illegal appointments that circumvent
constitutional requirements. However, where
appointments were not illegal but possibly
“irregular,” and where employees had served
continuously against the backdrop of sanctioned
functions for a considerable period, the need for a
fair and humane resolution becomes paramount.
W.P.(C) No.2846 of 2023 Page 55 of 80
Prolonged, continuous, and unblemished service
performing tasks inherently required on a regular
basis can, over the time, transform what was
initially ad-hoc or temporary into a scenario
demanding fair regularization. In a recent judgment
of this Court in Vinod Kumar Vrs. Union of India,
(2024) 1 SCR 1230, it was held that held that
procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed “temporary” but has
performed the same duties as performed by the
regular employee over a considerable period in
the capacity of the regular employee. The
relevant paras of this judgment have been
reproduced below:
„6. The application of the judgment in Uma Devi
(supra) by the High Court does not fit squarely
with the facts at hand, given the specific
circumstances under which the appellants
were employed and have continued their
service. The reliance on procedural
formalities at the outset cannot be used to
perpetually deny substantive rights that
have accrued over a considerable period
through continuous service. Their promotion
was based on a specific notification for
vacancies and a subsequent circular, followed
by a selection process involving written tests
and interviews, which distinguishes their case
from the appointments through back door entry
as discussed in the case of Uma Devi (supra).
7. The judgment in the case Uma Devi (supra)
also distinguished between “irregular” and
W.P.(C) No.2846 of 2023 Page 56 of 80
“illegal” appointments underscoring the
importance of considering certain appointments
even if were not made strictly in accordance
with the prescribed Rules and Procedure,
cannot be said to have been made illegally if
they had followed the procedures of regular
appointments such as conduct of written
examinations or interviews as in the present
case. ***”
21. The High Court placed undue emphasis on the initial
label of the appellants‟ engagements and the
outsourcing decision taken after their dismissal.
Courts must look beyond the surface labels and
consider the realities of employment: continuous,
long-term service, indispensable duties, and absence
of any mala fide or illegalities in their appointments.
In that light, refusing regularization simply
because their original terms did not explicitly
state so, or because an outsourcing policy was
belatedly introduced, would be contrary to
principles of fairness and equity.
22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a
broader systemic issue that adversely affects
workers‟ rights and job security. In the private
sector, the rise of the gig economy has led to an
increase in precarious employment arrangements,
often characterized by lack of benefits, job security,
and fair treatment. Such practices have been
criticized for exploiting workers and undermining
labour standards. Government institutions,
entrusted with upholding the principles of fairness
and justice, bear an even greater responsibility toW.P.(C) No.2846 of 2023 Page 57 of 80
avoid such exploitative employment practices. When
public sector entities engage in misuse of temporary
contracts, it not only mirrors the detrimental trends
observed in the gig economy but also sets a
concerning precedent that can erode public trust in
governmental operations.
23. The International Labour Organization (ILO), of
which India is a founding member, has consistently
advocated for employment stability and the fair
treatment of workers. The ILO‟s Multinational
Enterprises Declaration [International Labour
Organization– Tripartite Declaration of Principles
concerning Multinational Enterprises and Social
Policy] encourages companies to provide stable
employment and to observe obligations concerning
employment stability and social security. It
emphasizes that enterprises should assume a
leading role in promoting employment security,
particularly in contexts where job
discontinuation could exacerbate long-term
unemployment.
24. The landmark judgment of the United State in the
case of Vizcaino Vrs. Microsoft Corporation, 97 F.3d
1187 (9th Cir. 1996) serves as a pertinent example
from the private sector, illustrating the consequences
of misclassifying employees to circumvent providing
benefits. In this case, Microsoft classified certain
workers as independent contractors, thereby
denying them employee benefits. The U.S. Court of
Appeals for the Ninth Circuit determined that these
workers were, in fact, common-law employees and
were entitled to the same benefits as regular
employees. The Court noted that large CorporationsW.P.(C) No.2846 of 2023 Page 58 of 80
have increasingly adopted the practice of hiring
temporary employees or independent contractors as
a means of avoiding payment of employee benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the work
performed, rather than the label assigned to the
worker, should determine employment status and
the corresponding rights and benefits. It highlights
the judiciary‟s role in rectifying such
misclassifications and ensuring that workers
receive fair treatment.
25. It is a disconcerting reality that temporary
employees, particularly in government institutions,
often face multifaceted forms of exploitation. While
the foundational purpose of temporary contracts
may have been to address short-term or seasonal
needs, they have increasingly become a mechanism
to evade long-term obligations owed to employees.
These practices manifest in several ways:
Misuse of “Temporary” Labels:
Employees engaged for work that is essential,
recurring, and integral to the functioning of an
institution are often labeled as “temporary” or
“contractual,” even when their roles mirror those of
regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that
regular employees are entitled to, despite performing
identical tasks.
Arbitrary Termination:
Temporary employees are frequently dismissed
without cause or notice, as seen in the present case.
This practice undermines the principles of natural
justice and subjects workers to a state of constant
W.P.(C) No.2846 of 2023 Page 59 of 80
insecurity, regardless of the quality or duration of
their service.
Lack of Career Progression:
Temporary employees often find themselves
excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain
stagnant in their roles, creating a systemic disparity
between them and their regular counterparts,
despite their contributions being equally significant.
Using Outsourcing as a Shield:
Institutions increasingly resort to outsourcing roles
performed by temporary employees, effectively
replacing one set of exploited workers with another.
This practice not only perpetuates exploitation but
also demonstrates a deliberate effort to bypass the
obligation to offer regular employment.
Denial of Basic Rights and Benefits:
Temporary employees are often denied fundamental
benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure
spans decades. This lack of social security subjects
them and their families to undue hardship,
especially in cases of illness, retirement, or
unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought
to curtail the practice of backdoor entries and
ensure appointments adhered to constitutional
principles, it is regrettable that its principles
are often misinterpreted or misapplied to deny
legitimate claims of long-serving employees.
This judgment aimed to distinguish between “illegal”
and “irregular” appointments. It categorically held
W.P.(C) No.2846 of 2023 Page 60 of 80
that employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time measure.
However, the laudable intent of the judgment is
being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even
in cases where their appointments are not illegal,
but merely lack adherence to procedural formalities.
Government departments often cite the judgment in
Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment’s explicit acknowledgment
of cases where regularization is appropriate. This
selective application distorts the judgment’s spirit
and purpose, effectively weaponizing it against
employees who have rendered indispensable
services over decades.
27. In light of these considerations, in our opinion, it is
imperative for Government departments to lead by
example in providing fair and stable employment.
Engaging workers on a temporary basis for
extended periods, especially when their roles are
integral to the organization’s functioning, not only
contravenes international labour standards but also
exposes the organization to legal challenges and
undermines employee morale. By ensuring fair
employment practices, Government institutions
can reduce the burden of unnecessary
litigation, promote job security, and uphold the
principles of justice and fairness that they are
meant to embody. This approach aligns with
international standards and sets a positive
precedent for the private sector to follow, thereby
W.P.(C) No.2846 of 2023 Page 61 of 80
contributing to the overall betterment of labour
practices in the country.”
6.15. In the case of Shripal Vrs. Nagar Nigam, 2025 SCC
OnLine SC 221 referring to observations rendered in
Jaggo (supra), the Hon’ble Supreme Court of India has
clarified that:
“16. The High Court did acknowledge the Employer‟s
inability to justify these abrupt terminations.
Consequently, it ordered re-engagement on daily
wages with some measure of parity in minimum
pay. Regrettably, this only perpetuated
precariousness: the Appellant Workmen were
left in a marginally improved yet still
uncertain status. While the High Court recognized
the importance of their work and hinted at eventual
regularization, it failed to afford them continuity of
service or meaningful back wages commensurate
with the degree of statutory violation evident on
record.
17. In light of these considerations, the Employer‟s
discontinuation of the Appellant Workmen stands in
violation of the most basic labour law principles.
Once it is established that their services were
terminated without adhering to Sections 6E and 6N
of the U.P. Industrial Disputes Act, 1947, and that
they were engaged in essential, perennial duties,
these workers cannot be relegated to perpetual
uncertainty. While concerns of municipal budget and
compliance with recruitment rules merit
consideration, such concerns do not absolve the
Employer of statutory obligations or negate equitable
entitlements. Indeed, bureaucratic limitations
W.P.(C) No.2846 of 2023 Page 62 of 80
cannot trump the legitimate rights of workmen
who have served continuously in de facto
regular roles for an extended period.
18. The impugned order of the High Court, to the extent
they confine the Appellant Workmen to future daily-
wage engagement without continuity or meaningful
back wages, is hereby set aside with the following
directions:
I. The discontinuation of the Appellant
Workmen‟s services, effected without
compliance with Section 6E and Section 6N of
the U.P. Industrial Disputes Act, 1947, is
declared illegal. All orders or communications
terminating their services are quashed. In
consequence, the Appellant Workmen shall be
treated as continuing in service from the date
of their termination, for all purposes, including
seniority and continuity in service.
II. The Respondent Employer shall reinstate the
Appellant Workmen in their respective posts (or
posts akin to the duties they previously
performed) within four weeks from the date of
this judgment. Their entire period of absence
(from the date of termination until actual
reinstatement) shall be counted for continuity of
service and all consequential benefits, such as
seniority and eligibility for promotions, if any.
III. Considering the length of service, the Appellant
Workmen shall be entitled to 50% of the back
wages from the date of their discontinuation
until their actual reinstatement. The
Respondent Employer shall clear the aforesaidW.P.(C) No.2846 of 2023 Page 63 of 80
dues within three months from the date of their
reinstatement.
IV. The Respondent Employer is directed to initiate
a fair and transparent process for regularizing
the Appellant Workmen within six months from
the date of reinstatement, duly considering the
fact that they have performed perennial
municipal duties akin to permanent posts. In
assessing regularization, the Employer shall
not impose educational or procedural criteria
retroactively if such requirements were never
applied to the Appellant Workmen or to
similarly situated regular employees in the
past. To the extent that sanctioned vacancies
for such duties exist or are required, the
Respondent Employer shall expedite all
necessary administrative processes to ensure
these longtime employees are not indefinitely
retained on daily wages contrary to statutory
and equitable norms.”
Analysis and discussions:
7. From the rival contentions/submissions and scanning
through the documents forming part of pleading it
remains undisputed:
i. The petitioners have been engaged as Peon and
Watchman under the Odisha State Police Housing
and Welfare Corporation Ltd.
ii. They were initially engaged as Daily Wages Earners
since 1987/1989/1994/1996 as per the exigency.
W.P.(C) No.2846 of 2023 Page 64 of 80
However, as required by the Corporation by filing
applications and appearing in the interview, they
were appointed on ad hoc basis since 1990/1994/
1996.
iii. Their long association with the Corporation led the
Corporation, a model employer, to take decision to
examine their case for absorption against existing
vacancies.
iv. By virtue of Office Order No.E-38/06–
3489/OPHWC, dated 13.05.2010 of the Odisha
State Police Housing and Welfare Corporation Ltd.,
the Office Order No.5451/OPHWC, dated
19.06.2009 and No.5460/OPHWC, dated
19.06.2009 in which the services of one Watchman
was regularised has been withdrawn.
v. This Court while entertaining the present writ
petition, vide Order dated 01.02.2023 has directed
for keeping the said Office Order in abeyance
13.05.2010 and in pursuance thereof the
petitioners have been continuing.
8. This Court is called upon to decide whether such a
withdrawal of Office Orders regularising the services of
the petitioners is just and proper?
W.P.(C) No.2846 of 2023 Page 65 of 80
9. What is perceived from the written note of submission
filed by the opposite party No.2 and the arguments
advanced by Sri Girija Prasanna Dutta, learned
Advocate, it is manifest that on application of the Odisha
Reservation of Vacancies in Posts and Services (For
Scheduled Castes and Scheduled Tribes) Act, 1975, no
vacancy is available to absorb the petitioners. Therefore,
the emphasis by the opposite parties is on the
application of the ORV Act to obviate the decision of the
Selection Committee in its Meeting dated 11.06.2009 as
reflected in Office Orders dated 19.06.2009 of the
Corporation.
9.1. Such a stance of the Corporation appears to run counter
to purport of exclusion clause envisaged under Section 3
of the ORV Act.
9.2. As is admitted, the petitioners were engaged as
peons/watchman under the opposite party No.2-Odisha
State Police Housing Welfare Corporation Ltd. on Daily
Wage basis and subsequently were given ad hoc
engagement. Thus, the decision of the opposite parties is
flawed inasmuch as the same contradicts exclusion of
application of ORV Act in terms of Section 3 ibid.
9.3. At the stage of consideration of regularisation/
absorption in service, the application of the ORV Act is
not a sine qua non factor. Needless to repeat that at the
W.P.(C) No.2846 of 2023 Page 66 of 80
time of engagement the authorities ought to have kept in
view such statutory requirement, if any. For the flaw in
adhering to procedural infirmity could not adversely
affect the petitioners’ right to be considered for
regularisation in services after having rendered
unblemished service for long period.
9.4. In this connection the observation of a Division Bench of
this Court in the case of Director General of Training and
Coordination Vrs. Biswamitra Parida, W.A. No.822 of
2020, vide Order dated 10.02.2021 may fruitfully be
referred to:
“By way of this Writ Appeal the appellants-State
functionaries have challenged the Order dated
03.09.2020 passed by the learned Single Judge in W.P(C)
No.22112 of 2020.
The brief fact of the case is that the respondents were
engaged as Junior Data Entry Operators on contractual
basis under the appellants-institution-Gopabandhu
Academy of Administration in the year 2011. Since there
was necessity of a regular Data Entry Operators in the
Academy, the appellant No.1 was making
correspondences frequently for sanction of the post of
Data Entry Operators, but till date no action has been
taken by the Administrative Department in the matter of
sanction of post of Data Entry Operators. On the other
hand, the respondents were engaged against the post of
Data Entry Operators on contractual basis vide GAA office
orders dated 29.01.2011 and 07.02.2011. The grievance
of the respondents is that they have rendered more than
10 years of service till now under the appellant‟s
W.P.(C) No.2846 of 2023 Page 67 of 80
institution for which they seek for regularization of their
service on the basis of ratio of the judgment in Secretary
State of Karnataka and others Vrs. Umadevi (3) and
others (2006) 4 SCC 1 and in State of Karnataka & others
Vrs. M. L. Kesari & others involving SLP(C) No.15774 of
2006 2 and also the resolution of the G.A Department
dated 17.09.2013.
Hence, this Court observes that the Resolution dated
17.09.2013 of the General Administration Department
was passed pursuant to the direction issued by the
Hon‟ble Apex Court for regularization of the DLR, daily
wages employees who has completed six years service.
Here, the respondents were engaged as Data Entry
Operators in the year 2011 pursuant to a selection list
after creation of posts. In view of the Resolution dated
17.09.2013, since the respondents have already
completed the required years of continuous
service/engagement and posts were created pursuant to
the direction of the learned Court, the appellants-opposite
parties should not have engaged the respondents on
contractual basis. Therefore, the appellants opposite
parties should regularize the service of the respondents in
accordance with the Resolution dated 17.09.2013 of the
General Administration Department.
Considering the above facts, it is not disputed that
similar questions on principles of ORV Act which
were not followed earlier, series of writ petitions
were disposed of which were confirmed by the Apex
Court in SLP No.18642 of 2018 dated 06.08.2018 in
the case of State of Odisha & Anr. Versus Jatin
Kumar Das which arises out of Original Application
No.2172(C) of 2015 and batch of cases. In the said
Original Application, the learned Tribunal has already
W.P.(C) No.2846 of 2023 Page 68 of 80
dealt with the said issue having not followed the Rules of
the ORV Act at paragraph-8 of the judgment dated
17.05.2017 and 75 Original Applications were disposed
of by the Tribunal wherein the following specific finding
was given:
„the ORV Posts and Services Act 1975 has no application
to the posts to be filled up through contract in terms of
Section 3(d) of the said Act. The respondents failed to
produce any paper indicating the amendment of Section
3(d) of ORV Act, 1975 so also they could not able to
produce the documents that there was any other statutory
and mandatory provision overriding Section 3(d) referred
to above for application of the reservation principle while
issuing contractual engagement/appointment in
favour of the applicants during the year 2005.‟However, pursuant to the direction of this Court to take
instruction, learned Additional Government Advocate
submitted that the Resolution dated 17.09.2013 passed
by the General Administration Department for
regularization of the DLR, daily wages employees shall be
applicable in the case of present respondents.
In view of the above facts, all the writ petitions were
disposed of confirming the order of Tribunal and the said
orders of the writ petitions were confirmed by the apex
Court in Special Leave Petition on the same issue. Rightly
the learned Single Judge has directed the appellants-
State authorities to regularize services of the Respondents
petitioner in terms of the above facts and circumstances
narrated in the above paragraphs. Therefore, we are not
inclined to interfere with the impugned order dated
03.09.2020 passed by the learned Single Judge in W.P.(C)
No.22112 of 2020. Accordingly, the Writ Appeal is
dismissed.
W.P.(C) No.2846 of 2023 Page 69 of 80
However, the appellants are directed to consider the case
of the respondents and to regularize their service and
grant consequential service benefits as due and
admissible to them within a period of two months from the
date of communication of a copy of this order keeping in
view the Resolution dated 17.09.2013 the Finance
Department.”
9.5. Said decision of this Court was carried to the Hon’ble
Supreme Court of India in Petition(s) for Special Leave to
Appeal (C) No(s).6851 of 2021 (State of Odisha Vrs.
Biswamitra Parida), which came to be disposed of on
30.06.2021 with the following Order:
“1. We are not inclined to entertain the Special Leave
Petitions under Article 136 of the Constitution.
2. The Special Leave Petitions are accordingly
dismissed.
3. Pending application, if any, stands disposed of.”
9.6. The observation of the Hon’ble Supreme Court of India
in the case of State of Odisha Vrs. Laxman Kumar Prusty,
Petition for Special Leave to Appeal (C) No. 95 of 2019
(Arising out of impugned final judgment and order dated
23.03.2018 in WP(C) No.22547 of 2017 passed by the
High Court of Orissa at Cuttack) is noteworthy:
“Having heard learned counsel appearing for the
petitioner and in the peculiar facts and circumstances of
the case and considering the fact that the respondents
herein/original applicants were continued since 2008
against the regular posts and completed six years of
W.P.(C) No.2846 of 2023 Page 70 of 80
contractual service, they were entitled to the benefit of
Resolution dated 17.09.2013. The submission made on
behalf of the respondents that at the relevant time
when they were appointed, the reservation was not
followed and, therefore, they are not entitled to
regularisation is concerned, the petitioner/State
cannot be permitted to take such a stand after
continuing them on contractual basis for
approximately six years. No interference of this Court
is called for. The Special Leave Petition stands dismissed.
Pending application(s), if any, shall stand disposed of.”
9.7. In Rajashree Rout Vrs. State of Odisha, 129 (2020) CLT
507, it is the observation of this Court that,
“13. On critical analysis of the relevant provisions of the
ORV Act, 1975 and the resolutions governing the
field, it would be clearly evident that so far as
engagement of ICDS supervisor under Keonjhar
district is concerned, neither the ORV Act, 1975 nor
any such reservation is applicable. But, in the
proceedings of the selection committee meeting held
on 26.11.2011 in Mini Conference Hall, Collectorate,
Keonjhar for filling up the vacant post of lady
supervisor on contractual basis under DSWO,
Section, Collectorate, Keonjhar, under the heading of
zone of consideration, a decision was taken that
ORV Act, 1975 will be applicable to the contractual
engagement. Such decision of the selection
committee is de horse the rules governing the field,
and also the resolutions passed by the Government
from time to time, as mentioned above.
14. Much reliance has been placed on the judgment of
this Court in Parthapratima Panda Vrs. State of
W.P.(C) No.2846 of 2023 Page 71 of 80
Odisha, 2019 (II) OLR 786 by Mr. S. Palit, learned
Addl. Government Advocate. But the said case is
totally different from the present one both factually
and legally, reason being in the said case the
resolution was issued by the Government of Odisha
in General Administration Department on
20.09.2005 with regard to reservation vacancies in
favour of physically handicapped persons,
sportsmen and ex-servicemen in initial recruitment in
State Civil Services and posts, to the effect that the
State Government has reserved 3% of the vacancies
for physically handicapped, 1% for sportsmen, 3%
for ex-servicemen in case of initial recruitment in
State Civil Services. Therefore, examining the
applicability of the provisions of ORV Act, 1975,
since the appointments in that case were contractual
in nature for a period of 11 months and were purely
temporary and also co-terminus with the scheme, as
per the advertisement issued, and Section 3(d) of the
ORV Act specifically excludes its application to the
appointments to be made under contractual basis, it
was held that the provisions of ORV Act is not
applicable, until amendment of Section 3(d).
Thereby, the reliance placed on the said judgment
by the learned Addl. Government Advocate has no
application to his contention; rather it supports the
case of the petitioners.”
9.8. The following observation of this Court in Brajendra
Kumar Jena Vrs. State of Odisha, W.P.(C) No.38099 of
2021, vide Judgment dated 21.10.2024 may have to be
referred to:
W.P.(C) No.2846 of 2023 Page 72 of 80
“9.4. For another reason the ORV Act, 1975 has no
application to the present context; for that the State
Government has introduced amendment to Section
31 thereof by virtue of the Odisha Reservation of
Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Amendment
Ordinance, 2023 [published in Odisha Gazette,
Extraordinary No.1996, dated 19.08.2023], which
has been given effect to “at once”. Later said
Ordinance has been promulgated as the Odisha
Reservation of Vacancies in Posts and Services (for
Scheduled Castes and Scheduled Tribes)
Amendment Act, 2023 [published in Odisha Gazette,
Extraordinary No.2543, dated 07.11.2023], which
1 Section 3 of the Odisha Reservation of Vacancies in Posts and Services (for
Scheduled Castes and Scheduled Tribes) Act, 1975, after insertion of sub-
section (2) would read thus:
“3. Applicability.–
(1) This Act shall apply to all appointments to the Posts and Services under
the State except–
(a) Class-I posts which are above the lowest rung thereof and meant
for conducting or guiding or directing Scientific and Technical
research;
(b) Class-I Posts which are above the lowest rung thereof and
classified as scientific posts;
(c) tenure posts;
(d) those filled up on the basis of any contract;
(e) ex-cadre posts;
(f) those which are filled up by transfer within the cadre or on
deputation;
(g) the appointment of such staff the duration of whose appointment
does not extend, beyond the term of office of the person making the
appointment and the work charged staff which are required for
emergencies like flood relief work, accident restoration and relief
etc.;
(h) temporary appointments of less than forty-five days duration;
(h-I) those which are required to be filled up by appointment of persons
under the rehabilitation assistance given to the members of the
family of the deceased or permanent disabled employees who
suffer from the disability while in service;
(i) those in respect of which recruitment is made in accordance with
any provision contained in the Constitution.
(j) Schematic posts.
(2) Notwithstanding anything contained in sub-section (1), reservation shall
apply to appointment made or to be made to all tenure posts or contractual
posts or schematic posts which are to be regularized against the
sanctioned posts.”
W.P.(C) No.2846 of 2023 Page 73 of 80
came into force with effect from 19.08.20232. Sub-
section (2) of Section 3 as inserted by virtue of said
amendment does not admit of any ambiguity.
Cursory glance at said amendment, which specifies
the effective date as 19.08.2023 (prospective
amendment), suggests that prior thereto the
provisions introduced by way of amendment to the
ORV Act, 1975, had no application to contractual
engagements for consideration of regularisation
against the sanctioned posts.
9.5. It may be stated that recourse to a subsequent
legislation is permissible if there exists any
ambiguity in the earlier legislation for the purpose of
ascertaining as to whether by a subsequent
2 The Odisha Reservation of Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Amendment Act, 2023 (Odisha Act 10 of 2023)
stands as follows:
[Be it encacted by the Legislature of the State of Odisha in the Seventy- fourth
Year of the Republic of India, as follows:
1. Short title and commencement.–
(1) This Act may be called the Odisha Reservation of Vacancies in Posts and
Services (for Scheduled Castes and Scheduled Tribes) Amendment Act,
2023.
(2) It shall be deemed to have come into force on the 19th day of August,
2023.
2. Amendment of Section 3.–
In the Odisha Reservation of Vacancies In Posts and Services (for
Scheduled Castes and Scheduled Tribes) Act, 1975 [Odisha Act No. 38 of
1975], Section 3 shall be re-numbered as sub-section (1) thereof and in
sub-section (1) as so re-numbered, —
(i) after clause (i), the following clause shall be inserted, namely:
“(j) Schematic Posts.”
(ii) after sub-section (1) so re-numbered, the following sub-section shall be
inserted, namely:
“(2) Notwithstanding anything contained in sub-section (1), reservation
shall apply to appointment made or to be made to all tenure posts
or contractual posts or Schematic posts which are to be regularised
against the sanctioned posts.”
3. Repeal and Savings.–
(1) The Odisha Reservation of Vacancies in Posts and Services (for Scheduled
Castes and Schedule Tribes) Amendment Ordinance, 2023 [Odisha
Ordinance No.3 of 2023] is hereby repealed.
(2) Notwithstanding the repeal under sub-section (1), anything done or any
action taken under the said Ordinance so repealed shall be deemed to
have been done or taken under this Act.]
W.P.(C) No.2846 of 2023 Page 74 of 80
legislation proper interpretation has been fixed
which is to be put upon the earlier Act. [Mahim
Patram Private Ltd. Vrs. Union of India, 2007 (3)
SCC 668]. Glaringly, in the present context, the case
of the petitioner emanated prior to the Odisha
Reservation of Vacancies in Posts and Services (for
Scheduled Castes and Scheduled Tribes)
Amendment Act, 2023 came into force. Before said
amendment Act, 2023 came into effect, the petitioner
had already been eligible for consideration of
regularization in service.
9.6. In such view of the matter, the impugned Order of
the Director of Health Services, Odisha cannot be
sustained inasmuch as non-adherence to the
provisions of the ORV Act, 1975 has been taken as a
factor to dispel the claim of the petitioner for
regularization in service.”
Conclusion:
10. Given the delineated scope of consideration for
regularization/absorption in service vis-à-vis proposition
of law as expounded by different Courts, it is apparent
that the Office Orders dated 12.05.2010 revoking
regularization of the petitioners in service vide Office
Orders dated 19.06.2009 cannot be held to be tenable in
the eye of law.
10.1. As has already been taken note of that while the turn for
the authorities to consider the regularisation in service
of the petitioners fell, at that stage it is unwholesome for
the opposite parties to say that at the time of initial
W.P.(C) No.2846 of 2023 Page 75 of 80
engagement application of the ORV Act was not
examined and followed by the appointing authority. In
the case at hand the Selection Committee was satisfied
with the unblemished service career of the petitioners
and recommended their names, pursuant to which the
Office Orders dated 19.06.2009 were issued.
Furthermore, the discussion supra leads to irresistible
conclusion that the application of ORV Act is excluded in
the facts-situation of the instant case.
10.2. The petitioners have rendered continuous and
uninterrupted service for long years (even before interim
protection has been granted by this Court) ranging from
27 to 36 years by now. Therefore, Office Order No.E-
31/06/3492/OPHWC, dated 12.05.2010 cannot
withstand scrutiny in law.
10.3. This Court cannot be oblivious of view expressed by the
Hon’ble Supreme Court of India in the case of Gujarat
Agricultural University Vrs. Rathod Labhu Bechar, (2001)
3 SCC 574:
“17. From the aforesaid, it emerges that the learned
Single Judge had concurred with the finding of the
Tribunal that the contesting workmen have been
working in the appellant University regularly for a
long number of years. The existence of permanent
nature of work was inferred on this account and
also due to the vastness of the appellant‟s
establishment. The regularisation is claimed only inW.P.(C) No.2846 of 2023 Page 76 of 80
respect of Class IV employees. The main objection
which was raised earlier and is raised before us, is
that a person could only be regularised on any
vacant post and if there be one he should be
qualified for the same as per qualifications, if any,
prescribed. In fact, the Tribunal has held that on the
date of the award, most of the workmen had
completed 10 years of their service. It is also well
settled, if work is taken by the employer
continuously from the daily-wage workers for a
long number of years without considering their
regularisation for its financial gain as against
employees’ legitimate claim, has been held by
this Court repeatedly as an unfair labour
practice. In fact, taking work from a daily-
wage worker or an ad hoc appointee is always
viewed to be only for a short period or as a
stopgap arrangement, but we find that a new
culture is growing to continue with it for a long
time, either for financial gain or for controlling
its workers more effectively with a sword of
Damocles hanging over their heads or to
continue with favoured ones in the cases of ad
hoc employees withstalling competent and
legitimate claimants. Thus we have no hesitation
to denounce this practice. If the work is of such a
nature, which has to be taken continuously and in
any case when this pattern becomes apparent,
whey they continue to work for year after year, the
only option to the employer is to regularise them.
Financial viability, no doubt, is one of the
considerations but then such enterprise or institution
should not spread its arms longer than its means.
The consequent corollary is, where work taken is not
for a short period or limited for a season or where
W.P.(C) No.2846 of 2023 Page 77 of 80
work is not of a part-time nature and if pattern
shows that work is to be taken continuously year
after year, there is no justification to keep such
persons hanging as daily-rate workers. In such a
situation a legal obligation is cast on an employer; if
there be vacant post, to fill it up with such workers
in accordance with rules, if any, and where
necessary by relaxing the qualifications, where long
experience could be equitable with such
qualifications. If no posts exist then duty is cast to
assess the quantum of such work and create such
equivalent posts for their absorption.
***
19. What emerges is, all the respondent workmen are
eligible for absorption on the facts of this case
subject to any eligible qualification under the rule if
any. Though no recruitment rules were filed in the
proceedings either before the Tribunal or in the High
Court but while proposing the scheme a copy of the
recruitment rules for various cadres have been
placed before us on behalf of the appellant
University. This gives in column 1 the serial number,
in column 2 the name of the post, in column 3 the
pay scale, in column 4 the age-limit and in column 5
the qualification. Serial Number 10 deals with peon
and Class IV servants, Serial Number 13 deals with
operator-cum-mechanic, Serial Number 14 deals
with chowkidar, Serial Number 25 deals with
plumber and Serial Number 33 deals with carpenter.
This shows that recruitment rules did have these
posts in their ambit about which we are concerned,
yet no posts were created. This proposed creation
of post is churned out only after this longW.P.(C) No.2846 of 2023 Page 78 of 80
battle by the workmen as against the
appellant. It was not expected from the
institutions like the present appellant,
especially when it is fully funded by the State
Government that this process of absorption
should have taken such a long time and to
have yielded to it only after this long battle.
This legal position is well known not only to
the appellant but the State who is funding it,
then why to do it only after court‟s
intervention. It is true, creation of post does
involve financial implication. Hence financial
health of a particular institution plays an important
role which courts also keep in mind. The court does
exercise its restraint where facts are such where
extent of creation of post create financial disability.
But at this juncture we would like to express our
note of caution, that this does not give largess to an
institution to engage larger number of daily-wage
workers for a long number of years without
absorbing them or creating posts, which constitutes
an unfair labour practice. If finances are short,
engagement of such daily-wage workers could
only be for a short limited period and if
continuous work is required it could only do so
by creating permanent posts. If finances are
not available, take such work which is within
the financial means. Why take advantage out
of it at the cost of workers?”
11. The factual background as borne on record tested with
the legal position enunciated by Courts without any
ambiguity in mind leads to conclude that the Office
Order No.E-38/06/3489/OPHWC, dated 12.05.2010
W.P.(C) No.2846 of 2023 Page 79 of 80
and Office Order No.E-31/06/3492/OPHWC, dated
12.05.2010 indicating withdrawal of Office Orders
granting regularisation of the petitioners in service are in
conflict with the principles enunciated in the decisions
referred to, relied on and discussed supra.
12. Under such premises, the Office Order No.E-
38/06/3489/OPHWC, dated 12.05.2010 and Office
Order No.E-31/06/3492/OPHWC, dated 12.05.2010
passed by the opposite party No.2-Chairman-cum-
Managing Director of Odisha State Police Housing and
Welfare Corporation Ltd. are liable to be set aside and
this Court does so.
12.1. As a consequence thereof, Orders of the said Corporation
regularising the ad hoc services of the petitioners are
required to be given effect to. Accordingly, this Court
directs the opposite parties to do the needful within a
period of three months from date.
12.2. In the result, this writ petition stands disposed of, but in
the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: LAXMIKANT High Court of Orissa, Cuttack
MOHAPATRA
Designation: Senior Stenographer The 13th March, 2025//MRS/Laxmikant/Suchitra
Reason: Authentication
Location: High Court of Orissa,
Cuttack
Date: 13-Mar-2025 16:39:08 W.P.(C) No.2846 of 2023 Page 80 of 80