The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8063 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Hemanta Kumar Behera and Others …. Petitioners -versus- State of Odisha and Others …. Opposite Parties For Petitioner :Mr. G.A.R. Dora, Advocate For Opp. Parties :
Legal Reasoning
Mr. C.K. Pradhan, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:17.09.2025 and Date of Judgment:17.09.2025 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. G.A.R. Dora, learned counsel for the petitioner and Mr. C.K. Pradhan, learned Addl. Govt. Advocate for the State. 2. In course of hearing, learned counsel for the petitioners fairly contended that since during // 2 //
Decision
pendency of the Writ Petition, Petitioner Nos.4, 5, 6, 8 & 11 have already got the benefit of regularization, the Writ Petition be confined to the other petitioners. 3. It is contended that rest of the petitioners though were engaged prior to 12.04.1993 i.e. the cutoff date fixed by the Finance Department in its Resolution dated 15.05.1997, but instead of absorbing them in the regular establishment in terms of said resolution, petitioners were brought over to the Work Charged Establishment vide order dated 31.08.2009 under Annexure-3 and 4. 3.1. It is contended that even though petitioners were brought over to the Work Charged Establishment vide order dated 31.08.2009, but they are yet to be regularized in their services. It is further contended that claiming such benefit of regularization, petitioners though approached this Court in W.P.(C) No.5787 of 2022 and this Court directed for consideration of their claim, the same was rejected by the Govt.-O.P. No.1 vide the Page 2 of 12 // 3 // impugned order dated 05.01.2023 under Annexure- 15. 3.2. It is contended that since all the petitioners are engaged as NMRs prior to 12.04.1993 and continuing in the Work Charged Establishment in terms of order issued on 31.08.2009 under Annexure-3 and 4, in view of the recent decision of the Hon’ble Apex Court in the case of Jaggo vs. Union of India & Ors., 2024 SCC OnLine SC 3826; Shripal & Anr. vs. Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC 221, as well as Dharam Singh & Ors. vs. State of U.P. & Anr. (Civil Appeal No(s).8558 of 2018, the ground on which petitioners claim has been rejected is no more sustainable. 3.3. View expressed by the Hon’ble Apex Court in the case of Jaggo in Para-22 to 25 and 27 reads as follows:- “22. The pervasive misuse temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the of Page 3 of 12 // 4 // increase precarious private sector, the rise of the gig economy has led to employment an in lack of arrangements, often characterized by 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 to 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 ILO’s Multinational treatment of workers. The Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and It emphasizes that enterprises social security. should assume a in promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment. leading role illustrating consequences 24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, of the 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 Corporations 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 the principle that the nature of the work performed, rather than the label assigned to the worker, should determine the corresponding rights and benefits. It highlights the judiciary’s role in rectifying such misclassifications and ensuring that workers receive fair treatment. judgment underscores employment status and Page 4 of 12 // 5 // 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 they have or increasingly become a mechanism to evade long- term obligations owed to employees. These practices manifest in several ways: seasonal needs, • 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 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 illness, retirement, or unforeseen circumstances. in cases of xxxx xxxx xxxx xxxxx Page 5 of 12 // 6 // 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 contributing to the overall betterment of labour practices in the country.” 3.4. Hon’ble Apex Court in the case of Shripal in Para-14, 15, 17 & 18(IV) has held as follows:- “14. ...... More importantly, Uma Devi cannot serve as a shield justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. to Indian 15. ……. law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. labour xxxx xxxxx xxxxx xxxxxx 17. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period. 18.(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 Page 6 of 12 // 7 // necessary administrative processes to ensure these longtime employees are not indefinitely retained on to statutory and equitable daily wages contrary norms.” 3.5. Placing reliance on the decision in the case of Jaggo and Shripal, Hon’ble Apex Court in the case of Dharam Singh, in Paragraph-13, 14, 15 & 17, 18, 19 & 20 has held as follows: “13. As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission’s further contention that the appellants are not “full-time” employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State’s refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals. 14. The learned Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25.11.2003. However, that view overlooks that the writ petition squarely challenged the 11.11.1999 refusal as the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the respondents. In such circumstances, we believe that the High Court was obliged to examine the legality of the State’s stance in in 1999 or upon refusing sanction, whether reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the the principal dismissal without engaging with challenge or the intervening material. The approach of both the Courts, in reducing the dispute to a mechanical enquiry about “rules” and “vacancy” while ignoring the core question of arbitrariness in the State’s refusal to sanction posts despite perennial long service, cannot be sustained. need and Page 7 of 12 // 8 // in that reality regular 15. Therefore, in view of the foregoing observations, the impugned order of the High Court cannot be sustained. The State’s refusals dated 11.11.1999 and 25.11.2003,in so far as they concern the Commission’s proposals for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed. xxx xxx xxx 17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must its reflect sanctioned strength and engagement practices. The labour under long-term extraction of temporary in public labels corrodes confidence administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines. 18. Moreover, it must necessarily be noted that “ad- hocism” thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the India. Sensitivity to the human Constitution of is not consequences of prolonged sentimentality. It is an institutional discipline that should inform every decision affecting those who keep public offices running. 19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions: i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. insecurity Page 8 of 12 // 9 // Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization /retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with of effect superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgment. from 24.04.2002 until the date iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgement. v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgement. 20. We directions framed comprehensively because, case after case, orders of this Court in such matters have been met with fresh and technicalities, administrative drift which the insecurity for those who have already laboured for “reconsiderations,” further prolongs rolling these have Page 9 of 12 // 10 // years on daily wages. Therefore, we have learned that Justice in such cases cannot rest on simpliciter directions, but it demands imposition of clear duties, fixed timelines, and verifiable compliance .As a constitutional employer, the State is held to a higher standard and therefore it must organise its perennial workers on a sanctioned footing, create a budget for lawful engagement, and implement judicial directions in letter and spirit. Delay to follow these obligations is not mere negligence but rather it is a conscious method of denial that erodes livelihoods and dignity for these workers. The operative scheme we have set here comprising of creation of supernumerary posts, full regularization, subsequent financial benefits, and a sworn affidavit of compliance, is therefore a pathway designed to convert rights into outcomes and to reaffirm that fairness in engagement and transparency in administration are not matters of grace, but obligations under Articles 14, 16 and 21 of the Constitution of India.” 3.6. It is accordingly contended that O.P. No.1 be directed to take a fresh decision on the claim of the petitioners save and except petitioner Nos.4, 5, 6, 8 & 11, taking into account the ratio decided in the above noted 3 (three) cases. 4. Learned Addl. Govt. Advocate on the other hand contended that since 5(five) of the petitioners during pendency of the Writ Petition have already been regularized, rest of the petitioners subject to availability of vacancy and their seniority will also be regularized in due course. It is accordingly Page 10 of 12 // 11 // contended that the impugned order has been rightly passed. 5. Having heard learned counsel for the parties and considering the submissions made, this Court is of the view that since petitioners including Petitioner Nos.4, to 6, 8 & 11 are engaged prior to 12.04.1993 and petitioners except Petitioner Nos.4 to 6, 8 and 11 are continuing as NMR /Work Charged, their claim for regularization needs a re-consideration in the light of the decision passed by the Hon’ble Apex Court in the case of Jaggo, Shripal and Dharam Singh as cited (supra). 5.1. Therefore, this Court while quashing the impugned order dated 05.01.2023 under Annexure- 23 so far as it relates to the Petitioners except Petitioner Nos.4 to 6, 8 & 11 are concerned, direct O.P. No.1 to take a fresh decision in the light of the judgment passed by the Hon’ble Apex Court in the case of Jaggo, Shripal and Dharam Singh. Such a Page 11 of 12 // 12 // fresh decision as directed be taken within a period of 3(three) months from the date of receipt of this order. 6. The Writ Petition stands disposed of accordingly. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 17th September, 2025/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Sep-2025 18:06:12 Page 12 of 12