In the matter of the application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8236 of 2024 In the matter of the application under Articles 226 and 227 of the Constitution of India. Sitaram Behera … Petitioner - Versus - State of Odisha and others … Opposite Parties Advocate(s) appeared in this case:- ------------------------------------------------------------------------------- … M/s. Sukanta Kumar Mishra, For Petitioner B.R. Tripathy, B.P. Pradhan For Opposite Parties … Mr. Santosh Kumar Brahma, Additional Standing Counsel. ------------------------------------------------------------------------------- CORAM: HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ____________________________________________________________ :: Date of judgment-16.05.2025 Date of hearing-23.04.2025 Aditya Kumar Mohapatra, J. 1. The present writ petition has been filed at the instance of the Petitioner, who has rendered his service uninterruptedly as a casual labour for the last 35 years under the Opposite Party No.4. W.P.(C) No.8236 of 2024 Page 1 of 23. 2. In the present writ petition, a specific prayer has been made by the Petitioner to quash the order dated 02.02.2024 passed by the Opposite Party No.2 under Annexure-6 to the writ petition, thereby rejecting the prayer of the Petitioner for regularization of his service. Petitioner has further prayed for a direction to the Opposite Parties to regularize his service with all consequential service and financial benefits. 3. The factual background of the case, as culled out from the averments made in the writ petition, in short, is that the Petitioner was initially engaged as a casual labour with effect from 21.10.1990. A statement under the endorsement of the C.D.V.O., Boudh indicating the number of days that the Petitioner has worked from 1990 to 2014 has been filed along with the writ petition. As is evident from the documents annexed to the writ petition, particularly letter dated 16.11.2024 under Annexure-4, that the Opposite Party No.3-C.D.V.O., Boudh pursuant to the letter of the Directorate dated 27.09.2021, recommended the case of the Petitioner for regularization on the ground that the Petitioner had rendered 31 years of continuous service. The W.P.(C) No.8236 of 2024 Page 2 of 23. aforesaid letter of recommendation of the Opposite Party No.3 further reveals that the Petitioner had rendered more than 240 days of service in most of the years, however two to three years of service wherein the number of days of service rendered by the Petitioner falls short of 240 days, as no engagement was given due to cease work by the office, due to scanty water resources and the fodder production being stopped. 4. Since the recommendation of the Opposite Party No.3 to the Opposite Party No.2 vide letter dated 16.11.2021 under Annexure-4 was not acted upon and the services of the Petitioner were not regularized, the Petitioner was compelled to approach this Court earlier by filing W.P.(C) No.34461 of 2022 with a prayer for regularization of his service. This Court vide order
Decision
dated 02.01.2023 under Annexure-5 to the writ petition disposed of the writ petition with a direction to the Opposite Party No.2 to consider the case of the Petitioner in the light of the judgments of the Hon’ble Supreme Court in the cases of State of Karnataka v. Umadevi, reported in (2006) 4 SCC 1; State of Karnataka and others vrs. M.L. Keshari and others; reported in 2010 (9) SCC W.P.(C) No.8236 of 2024 Page 3 of 23. 247; and Amarkati Rai v. State of Bihar and Others, 2015 (8) SCC 265 as well as the judgment of this Court in the case of Basanta Kumar Barik v. State of Odisha and others (WPC(OA) No.616 of 2017, decided on 26.11.2021). 5. After disposal of the above noted writ petition, the Petitioner once again approached the Opposite Party No.2. The Opposite Party No.2 pursuant to the order passed by this Court disposed of the representation of the Petitioner vide order dated 02.02.2024 under Annexure-6 to the writ petition. Vide order dated 02.02.2024 under Annexure-6, the Opposite Party No.2 has rejected the prayer of the Petitioner for regularization of his service on the ground that although the Petitioner was appointed prior to 12.04.1993, however he has not been conferred with “Temporary Status”. As such, the question of his absorption against regular posts lying vacant does not arise. For absorption in Group-D post of the employees who have been engaged prior to 12.04.1993, the mandatory requirement is conferment of “Temporary Status” in view of the Resolution dated 04.09.2012 of the Finance Department, Government of Odisha. W.P.(C) No.8236 of 2024 Page 4 of 23. 6. Furthermore, it has been explained that for conferment of “Temporary Status”, the employees must have been engaged prior to 12.04.1993 and he must have rendered continuous service since their initial engagement for at least 240 days in a year. The rejection order further reveals that since it was found that the Petitioner has not completed 240 days of service in some of the years, therefore, he has not been conferred with the “Temporary Status”. Accordingly, the case of the Petitioner was not considered for regularization/absorption of his service against any Group-D post. In such view of the matter, the Opposite Party No.2 has come to a conclusion that the case of the Petitioner does not fulfill the eligibility criteria as has been laid down by the Hon’ble Supreme Court in the above noted judgments. Accordingly, the representation of the Petitioner was rejected. Being aggrieved by the rejection of his representation and the prayer for regularization/absorption of his service against Group-D post vide order dated 02.02.2024 under Annexure-6, the Petitioner has approached this Court by filing the present writ petition. W.P.(C) No.8236 of 2024 Page 5 of 23. 7. A counter affidavit has been filed on behalf of the State- Opposite Party No.2, i.e. Directorate of Animal Husbandry & Veterinary Services, Odisha. By referring to the counter affidavit filed by the Opposite Party No.2, learned counsel for the State supported the impugned rejection order dated 02.02.2024 under Annexure-6 to the writ petition. He further contended that the Opposite Parties have not committed any illegality as they have considered the case of the Petitioner pursuant to the order dated 02.01.2023 passed in W.P.(C) No.34461 of 2022 and since the Opposite Party No.2 found that the Petitioner does not fulfill the eligibility criteria, therefore, his prayer for regularization/absorption against the Group-D post has been rejected by passing a reasoned order. As such, the impugned order under Annexure-6 does not call for any interfere by this Court at this stage. 8. Learned counsel for the State further contended that in the counter affidavit, the Opposite Party No.2 has specifically stated that since the Petitioner was not conferred with the “Temporary Status”, his case was not considered for regularization/absorption W.P.(C) No.8236 of 2024 Page 6 of 23. in terms of the Resolution dated 04.09.2012 of the Finance Department, Government of Odisha. It was also contended that since the Petitioner has not rendered 240 days in a year in respect of some years of his service, he has not been conferred with the “Temporary Status”. He further contended that for conferment of “Temporary Status”, the employees must have rendered 240 days of service in a year continuously. While saying so, learned counsel for the State does not dispute the initial date of appointment and the number of days of service rendered by the Petitioner, as is evident from the document under Annexure-1 to the writ petition. A specific stand has been taken in the counter affidavit that the Petitioner has not completed 240 days of work in respect of the years 1990, 1992, 2005, 2009, 2010 and 2014 as per the Muster Roll, which has been filed as Annexure-A/2 to the counter affidavit. 9. Heard the learned counsel for the Petitioner as well as learned counsel for the State-Opposite Parties. Perused the pleadings of the respective parties as well as the documents annexed to the writ petition. W.P.(C) No.8236 of 2024 Page 7 of 23. 10. Learned counsel for the Petitioner, at the outset, contended that the Opposite Parties have not disputed the initial date of engagement of the Petitioner as a casual labour i.e. on 21.10.1990. He further submitted that it is also not disputed that the Petitioner has been discharging his duty continuously from the date of his initial engagement till now. In the process, the Petitioner has rendered almost 35 years of continuous service under the Opposite Party No.4. He further contended that the Opposite Parties are esstopped to raise the question with regard to the validity of initial engagement of the Petitioner in service after 35 years of continuous and relentless service rendered by the Petitioner. Learned counsel for the Petitioner further emphatically argued that the Opposite Parties have resorted to exploitation of the labour force. The case of the Petitioner is a glaring example of the aforesaid assertion. 11. Although the Petitioner was engaged as a casual labour in the year 1990, he has been continuing in service till now. Further, referring to the statement attached to the writ petition, learned counsel for the Petitioner contended that for almost for W.P.(C) No.8236 of 2024 Page 8 of 23. all these years the Petitioner has rendered services as a casual labour for more than 240 days and has fallen short of the benchmark for few years. He further laid emphasis on the recommendation of the C.D.V.O., Boudh-Opposite Party No.3 vide his letter dated 16.11.2021 under Annexure-4. 12. Learned counsel for the Petitioner further argued that at this stage it cannot be disputed that the nature of work that was being performed by the Petitioner is of regular and perennial nature. He went to the extent of saying that the Opposite Parties are esstopped to raise such a question after 35 years of continuous service rendered by the Petitioner. The length of service that has been rendered by the Petitioner itself stands as a testimony to the fact that the nature of the work was regular and perennial in nature. He further contended that although there are vacant sanctioned Group-D posts, however the case of the Petitioner was never considered by the Opposite Parties. Thus, the Opposite Parties are indulging in exploitation of work force by engaging the Petitioner as a casual labour by paying less amount of remuneration in comparison to the regular Group-D employees. W.P.(C) No.8236 of 2024 Page 9 of 23. 13. In course of his argument, learned counsel for the Petitioner also referred to the judgment of the Hon’ble Supreme Court in Jaggo v. Union of India and Ors., decided in SLP(C) No.5580 of 2024 vide judgment dated 20.12.2024. He also referred to the recent judgment of the Hon’ble Supreme Court in Shripal & Anr. v. Nagar Nigam, Ghaziabad, decided in Civil Appeal No.8157 of 2024 vide judgment dated 31.01.2025. In course of his argument, learned counsel for the Petitioner also referred to the judgments of the Hon’ble Supreme Court in Umadevi’s case (supra), M.L. Keshari’s case (supra), and Amarkanti Rai’s case (supra) as well as judgment of this Court in Basanta Kumar Barik’s case (supra). In view of the law laid down in the aforesaid judgments, learned counsel for the Petitioner contended that the impugned rejection order under Annexure-6 is unsustainable in the eye of law and the same is liable to be quashed with a further direction to Opposite Parties No.2 and 3 to regularize the service of the Petitioner against any available Group-D post. W.P.(C) No.8236 of 2024 Page 10 of 23. 14. In reply to the contention raised by the learned counsel for the Petitioner, learned counsel for the State while supporting the impugned rejection order, contended that the Petitioner does not qualify for absorption against any Group-D post as he has not been conferred with the “Temporary Status”. He further argued that the case of the Petitioner does not fall within the ratio laid down by the Hon’ble Supreme Court in Jaggo’s case (supra) and Shripal’s case (supra). He further contended that as has been stated in the counter affidavit that no Group-D post is available for absorption or regularization of the service of the Petitioner. Thus, no direction could be given by this Court to the Opposite Parties to regularize the service of the Petitioner. On such ground, learned counsel for the State contended that the present writ petition is devoid of merit and, as such, the same is liable to be dismissed. 15. Having regard to the submissions of the learned counsels appearing for the respective parties and on a careful scrutiny of the pleadings of both sides as well as the documents annexed to the writ petition and on further analysis of the submissions made W.P.(C) No.8236 of 2024 Page 11 of 23. by the learned counsels appearing for the respective parties, this Court observes that the only issue that is required to be considered in the present case is that as to whether in the factual background of the present case and keeping in view the fact that the Petitioner has rendered 35 years of continuous service as a casual labour, whether this Court can give a direction to Opposite Parties to regularize the service of the Petitioner either against any sanctioned vacant post or by creating a post? The aforesaid question of law is required to be adjudicated in the light of the admitted factual position of the present writ petition. 16. Reverting back to the factual background of the present writ petition and on careful analysis of the pleadings as well as the documents, this Court has no hesitation to hold that the Petitioner was initially engaged as a casual labour w.e.f. 21.10.1990. Further, the record reveals that the Petitioner has been working continuously since the date of his initial appointment. On further scrutiny of the materials on record, it appears that in most of the years the Petitioner has rendered more than 240 days of service. The years in respect of which the W.P.(C) No.8236 of 2024 Page 12 of 23. service of the Petitioner has fallen short of 240 days has been explained by the C.D.V.O., Boudh in his letter dated 16.11.2021 under Annexure-4 to the writ petition. The CDVO, Boudh in the letter under Annexure-4 to the writ petition has requested the Opposite Party No.2 to consider the case of the Petitioner sympathetically taking into consideration the fact that the Petitioner has dedicated 31 valuable years of his life in continuous service of the animals of the farm giving more than 240 days in a year on most of the occasions. 17. The letter further adds that only in respect of two to three years, he had fallen short of 240 days benchmark due to cease work by the office of Opposite Party No.3, for scanty water resources and stoppage of fodder production. Thus, on a careful analysis of the grounds given in the letter under Annexure-4, it appears that the Petitioner cannot be held responsible for rendering less than 240 days of work in respect of a handful of years as he was not responsible for the grounds taken in the letter under Annexure-4 to the writ petition. Thus, in the aforesaid context, it can very well be concluded that the Petitioner has W.P.(C) No.8236 of 2024 Page 13 of 23. rendered almost 35 years of continuous service and in most of the years for more than 240 days as a casual labour. In the aforesaid context, this Court does not find any difficulty to come to a conclusion that the nature of work that has been performed by the Petitioner is perennial in nature. Although there is no material on record to establish the fact that whether a sanctioned Group-D post was vacant at the relevant point of time, however, it cannot be disputed that the nature of work that has been performed by the Petitioner was regular and perennial in nature and that the same was essential for the Opposite Party No.3. 18. Considering the aforesaid factual background, an inference can very well be drawn by this Court that the Petitioner, who was engaged as a causal labour, was being exploited by the Opposite Parties for close to 35 years by definitely paying him lesser pay than the amount paid to regular Group-D employees. Such practice has been deprecated by the Hon’ble Supreme Court in the judgments in Jaggo (supra) as well as Shripal (supra). The Hon’ble Supreme Court has gone to the extent of commenting that the it is no more open to the State authorities to take shelter W.P.(C) No.8236 of 2024 Page 14 of 23. under the judgment of Umadevi (supra), to hide their illegality in exploiting the labour force. It would be profitable to refer to the judgments of the Hon’ble Supreme Court in Jaggo’s case (supra) as well as Shripal’s case (supra). Particularly, the following paragraphs of the judgment of the Supreme Court in Jaggo’s case (supra) are germane for a just adjudication of the dispute in the present writ petition:-. their claim issues further tenures solidifies raise any respondents “16. The appellants’ consistent performance over their long for regularization. At no point during their engagement did the their competence or performance. On the contrary, their services were extended repeatedly over the years, and their remuneration, though minimal, was incrementally increased which was an implicit acknowledgment of their satisfactory performance. The respondents’ belated plea of alleged unsatisfactory to be an afterthought and lacks credibility. service appears regarding 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 W.P.(C) No.8236 of 2024 Page 15 of 23. 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 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. to not only functioning, 27. In light of these considerations, in our opinion, it is imperative for government departments lead by in providing fair and stable employment. example Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, the burden of government 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.” institutions can reduce 19. Similarly, the pargarph-13 of the judgment of the Supreme Court in Shripal’s case (supra) is also germane for a just adjudication of the dispute in the present petition, which reads as follows:- “13. By requiring the same tasks (planting, pruning, general upkeep) from the Appellant Workmen as from W.P.(C) No.8236 of 2024 Page 16 of 23. still compensating them regular Gardeners but inadequately and inconsistently the Respondent Employer has effectively engaged in an unfair labour practice. The principle of “equal pay for equal work,” repeatedly emphasized by this Court, cannot be casually disregarded when workers have served for extended periods in roles resembling those of permanent employees. Long-standing assignments under the Employer’s direct supervision belie any notion that these were mere short-term casual engagements.” 20. Over the last decade, it is observed that the State Government to subvert the mandate of Hon’ble Supreme Court in Umadevi’s case (supra) has adopted the trick of engaging persons particularly in Group-C & Group-D services by engaging such persons on contractual or outsource basis. Thereby they have successfully avoided the demand of such employees for regularization of their service. More often it is found that the State authorities fall back upon Umadevi Judgement to reject the claim for regularization of service by such employees. Although a plea is usually taken that such employees are irregularly appointed initially, however no remedial measures are taken to stop such practice. The State authorities always use the judgment in Umadevi’s case (supra) as a shield to protect such illegal conduct and unfair treatment of the workforce. No explanation is coming forth from the State W.P.(C) No.8236 of 2024 Page 17 of 23. side as to whether the one time measure as suggested in Umadevi’s case has been followed or not. Ignoring the mandate in Umadevi’s case (supra), the State authorities are continuing with the practice of contractual or outsource engagement for a long time spanning over decades. Such conduct is being defended by citing Umadevi’s case. 21. To understand the true sense of the dicta in Umadevi’s case (supra), this Court would like to refer to the observation of the Hon’ble Supreme Court in the latest judgments; In Jaggo’s case (supra), the following observation has been recorded:- “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. 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 judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it was held that held that W.P.(C) No.8236 of 2024 Page 18 of 23. formalities cannot be used to deny procedural 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 judgement 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 judgement in the case Uma Devi between (supra) “irregular” and “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…” distinguished also 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 W.P.(C) No.8236 of 2024 Page 19 of 23. rely on institutions employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were in duly sanctioned posts and had served engaged continuously for more ten years, should be than considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when 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 is acknowledgment of cases where appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.” regularization its dicta In Shripal’s case (supra), the Hon’ble Supreme Court has made the following observations:- (supra)2 “14. The Respondent Employer places reliance on Umadevi that daily-wage or to contend temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are “illegal” and those that are “irregular,” the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor- based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily- wage status or continued unfair practices.” W.P.(C) No.8236 of 2024 Page 20 of 23. The above noted observation of the Hon’ble Supreme Court in Jaggo’s case (supra) and Shripal’s case (supra) leaves no room for doubt with regard to interpretation of the Umadevi’s case (supra). 22. In view of the aforesaid analysis of the legal position, further on a close scrutiny of the factual background of the present case, this Court has no hesitation in coming to a conclusion that the Opposite Party No.2 has committed an illegality by rejecting the prayer of the Petitioner for regularization/absorption of his service vide order dated 02.02.2022 under Annexure-6 to the writ petition. Moreover, this Court would also like to comment that the order dated 02.01.2023 passed by this Court in W.P.(C) No.34461 of 2022 filed by the Petitioner has not been understood by the Opposite Parties in its true perspective. The Opposite Parties have also failed to understand the spirit of the judgment of the Hon’ble Supreme Court as has been referred to hereinabove while considering the case of the Petitioner for regularization/absorption of service of the Petitioner. W.P.(C) No.8236 of 2024 Page 21 of 23. 23. In the aforesaid factual as well as legal background, this Court has no hesitation to quash the order dated 02.02.2024 under Annexure-6 and the same is hereby quashed. Further, while allowing the present writ petition this Court directs the Opposite Party No.2 to regularize the service of the Petitioner by absorbing him against any Group-D vacant post. However, in the event no sanctioned posts are available, a supernumerary post be created to absorb the Petitioner with further liberty that the same shall be abolished on retirement of the Petitioner. Further, the entire period of service of the Petitioner be counted towards his continuity in service, seniority and for calculating the qualifying period for determining his retiral as well as pensionary benefits. 24. It is further needless to direct that upon such regularization/absorption of the service of the Petitioner, the Petitioner shall be paid all consequential and financial benefits as is due and admissible to him. Let the aforesaid exercise be carried out within a period of three months from the date of communication of a certified copy of this judgment. W.P.(C) No.8236 of 2024 Page 22 of 23. 25. Accordingly, the writ petition is allowed. However, there shall be no order as to costs. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 16th May, 2025/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 17-May-2025 10:35:04 W.P.(C) No.8236 of 2024 Page 23 of 23.