Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.13753 of 2020 & W.P.(C) No.13752 of 2020 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** W.P.(C) No.13753 of 2020 1. Pabitra Kumar Mallick, Aged about 39 years Son of Kashinath Mallick Presently residing At: Kakarudrapur, Via: Balipatna District: Khordha. 2. Sukanta Kumar Biswal Aged about 33 years Son of Sadasiba Biswal At: Sunapada, P.O.: Haripur Via: Pipili, District: Puri. 3. Biswajit Satapathy Aged about 42 years Son of Late Purna Chandra Satapathy At/PO: Biswanathapur Via: Balipatna, District: Khordha. 4. Susanta Kumar Sahoo Aged about 38 years Son of Sankar Sahoo At: Raghunathpur Patna P.O.: Gholapur District: Cuttack. 5. Santanu Kumar Sahoo Aged about 38 years W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 1 of 63 Son of Benudhar Sahoo At: Champabasta, P.O.: Balipatna District: Khordha. 6. Kalandi Senapati Aged about 51 years Son of Siba Senapati At: Kunchapada P.O.: Banamalipur District: Khordha. 7. Deepak Kumar Mohapatra Aged about 47 years Son of Sarata Chandra Mohapatra At: Sibabrahmapur P.O.: Banamalipur District: Khordha. 8. Brundaban Chinara Aged about 42 years Son of Late Ghanashyama Chinara At: Athanpur At/P.O./District: Khordha. … -VERSUS- 1. Central Electricity Supply Utility of Odisha Represented through Chief Executive Officer Having its Head Office At 2nd Floor, IDCO Towers Janapath, Bhubaneswar. 2. Senior General Manager (HR), At 2nd Floor, IDCO Towers, Janapath, Bhubaneswar. 3. Manager (Electrical), Nimapara Electrical Division Nimapara (NED) Petitioners. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 2 of 63 4. 5. At/P.O.: Dighalo, Nimapara District: Puri. Tata Power Limited Represented though CEO & Managing Director Having its Registered Office At Bombay House, 24, Homi Mody Street Mumbai, Maharashtra. Tata Power Central Odisha Distribution Ltd. (TPCODL) Represented though Chairman Having its Registered Head Office At 2nd Floor, IDCO Tower Janpath, Bhubaneswar District: Khordha. … Opposite parties. W.P.(C) No.13752 of 2020 Jiten Kumar Behera, Aged about 30 years, Son of Late Gagan Bihari Behera, presently residing at Taila, P.O.: Dhanetri, P.S.: Konark, District: Puri. … -VERSUS- 1. Central Electricity Supply Utility of Odisha Represented through Chief Executive Officer, having its Head Office At 2nd Floor, IDCO Towers Janapath, Bhubaneswar. 2. Senior General Manager (HR), At 2nd Floor, IDCO Towers, Janapath, Bhubaneswar. Petitioner. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 3 of 63 3. Manager (Electrical), 4. 5. Bhubaneswar City Distribution Division-1 (BCDD-1), At/P.O.: Bhubaneswar, District: Khordha. Tata Power Limited Represented though CEO & Managing Director Having Registered Office At Bombay House 24, Homi Mody Street, Mumbai Maharashtra. Tata Power Central Odisha Distribution Ltd. (TPCODL), represented though Chairman Having its Registered Head Office At 2nd Floor, IDCO Tower Janpath, Bhubaneswar, District: Khordha. … Opposite parties. Counsel appeared for the parties: W.P.(C) No.13753 of 2020 For the Petitioners : Mr. Budhadev Routray, Senior Advocate assisted by M/s. S.D. Routrary, B.R. Pattanayak, Shakti Sekhar, Jagdish Biswal, A.K. Das and M.M. Panda, Advocates For the Opposite party Nos.1, 2, 4 & 5 : M/s. Bijaya Kumar Dash, Rajbhusan Dash, Smruti Ranjan Dash, Ramesh Chandra Sethy and Kishor Nayak, Advocates For the Opposite Party No.3 : None W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 4 of 63 W.P.(C) No.13752 of 2020 For the Petitioner : Mr. Budhadev Routray, Senior Advocate assisted by M/s. S.D. Routrary, B.R. Pattanayak, Shakti Sekhar, Jagdish Biswal, A.K. Das and M.M. Panda, Advocates For the Opposite party Nos.1, 2, 4 & 5 : M/s. Bijaya Kumar Dash, Rajbhusan Dash, Smruti Ranjan Dash, Ramesh Chandra Sethy and Kishor Nayak, Advocates For the Opposite Party No.3 : None P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 23.07.2025 :: Date of Judgment : 25.07.2025 J UDGMENT MURAHARI SRI RAMAN, J.—
Decision
THE WRIT PETITIONS: Assailing the order dated 04.01.2020 of the Senior General Manager (HR)-opposite party No.2, by which the petitioners are denied regularisation in service notwithstanding the bipartite settlement dated 08.06.2010, by virtue of which other similarly placed W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 5 of 63 Non-ITI workers engaged through outsourcing agency were regularized, but the petitioners are left out, these writ petitions, being W.P.(C) Nos.13753 of 2020 and 13752 of 2020, are filed craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s)1: “It is therefore, most humbly prayed that this Hon‟ble Court be graciously pleased to: i) ii) iii) iv) v) Admit the writ application. Call for the record. Issue Rule Nisi calling upon the opposite parties more particular opp. Party no.2 to show cause as to why the letter dated 04.01.2020 issued by the opposite party No.2 under Annexure-8 shall not be quashed; If the opposite parties more particularly opp. Party no.2 do not show cause or show insufficient cause issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/ directions by quashing the letter dated 04.01.2020 issued by the opposite party No.2 under Annexure-8; Issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/ directions directing the opp. Party No.2 to appoint the petitioners (“petitioner” in WP(C) No.13752 of the post of Helper Trainee and 2020) the subsequently the services of regularize to 1 Identical prayers are made in both the writ petitions being W.P.(C) Nos.13753 of 2020 and 13752 of 2020. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 6 of 63 vi) petitioners (“service of the petitioner” in WP(C) No.13752 of 2020) as agreed upon by the union of the petitioners and opposite party No.1 management in the bi-partite settlement dated 08.06.2010 under Annexure-3; Issue a writ in the nature of mandamus of any other appropriate writ/writs, order/orders, direction/ directions directing the opp. Party no.2 to grant all consequential service benefits to the petitioners (“petitioner” in WP(C) No.13752 of 2020) as has already been extended to their counterparts from the date of their appointment to the post of Trainee Helper as per the bi-lateral settlement dated 08.06.2010 under Annexure-3; vii) And/or pass any other order/orders, direction/ directions as this Hon‟ble Court deems fit and proper for the ends of justice. And for this act of kindness, the petitioner as in duty bound shall ever pray.” Factual matrix: 2. The facts emanated from the pleadings reveal that the petitioners, Non-ITI, engaged to work as Helper through outsourcing agency, namely, Maa Tarini Security Services in the year 2005 under the Central Electricity Supply Utility of Odisha-opposite party No.1, being not regularized in service, through their Union placed grievance for resolution on 03.12.2009 between the Management and the representatives of the Union. The charter of demands inter alia at Serial No.6 contained W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 7 of 63 regularization of all categories of contract workers, such as, ITI, Non ITI (Helper), Data Entry Operator, Office Assistant, Attendant and others workers. The opposite party No.1 settled the said dispute vide Bi-partite Settlement dated 08.06.2010, wherein at paragraph-3 it is decided as under: in O & M: “3. Outsourced Non-ITI working Those Non-ITIs working in Operation and Maintenance activities and have already completed one year engagement in CESU through outside agency would be considered as Helper (Trainee) and would be placed on 3‰ years training period. The stipend payable during the training period is given in Annexure-B. On successful completion of training period, they will be placed in Regular Pay Scale of Scale of Rs.4440-10200 with grade pay of Rs.1750/- and their basic pay will be fixed at Rs.4440/-. Before they are taken as Trainee, they are subjected to qualifying the Viva-voce & practical desk-top test.” 2.1. The opposite party No.2-Senior General Manager (HR) on 09.08.2010 issued a letter to all the General Managers, Deputy General Manager, Additional General Manager and Managers in-Charge of Circles/Divisions stating that the Management of CESU had decided to bring all the outsourced helpers (Non-ITIs excluding security guards) engaged in Operation and Maintenance activities and Peons/Attendants (Non-ITIs excluding security guards) to the trainee fold of CESU subject to qualifying W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 8 of 63 interview and practical desktop test and also vide Letter dated 15.02.2011 provided the date and venue of desk- top test and interview for the post of Helper (trainee). 2.2. In the meantime, the Odisha State Electricity Board Shramik Maha Sangha and one Security Guard, who was working in the Bhubaneswar City Distribution Division No.1 of CESU filed writ petition being WP(C) No.4188 of 2011 before this Court, wherein vide order dated 23.02.2011 notices were issued with interim protection staying the selection process of post of Helper (Trainee). Therefore, the desk-top and interview test of the Non-ITI workers could not proceed in view of interim order passed by this Court. However, vide order dated 11.08.2011 said writ petition came to be dismissed and, consequently, the interim order stood vacated. 2.3. After dismissal of the aforesaid writ petition, certain Helpers (Trainees) after successful completion of three and half years of training under CESU, were regularized in service vide Office Order dated 30.10.2014, while the petitioners are side tracked. 2.4. The Board of CESU in its 42nd Meeting held on 10.06.2014 again decided to bring the existing left out outsourced personnel engaged prior to 31.05.2010 in Operation and Management and other activities to the fold of CESU as Helper Trainee and they will be regularized regularly after completing three and half W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 9 of 63 years of training. Seamlessly working as such, waiting for further eight years with the hope of consideration of their regularization, the petitioners made representation on 17.11.2019 before the Ministry of Energy Department, which was forwarded to the opposite party No.2 on 17.12.2019 for consideration and the opposite party No.2 vide order dated 04.01.2020 instead of regularizing the petitioners as per the bi-partite settlement dated 08.06.2010 stemming on which other Non-ITI workers engaged through outsourced agencies, like the present petitioners, were regularized, but taking shelter of State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1, the opposite party No.2 instead of regularizing the present petitioners in service, decided to give weightage to the petitioners whenever fresh recruitment for relevant post would be made. 2.5. The text of Letter dated 04.01.2020 of CESU (Annexure- 8), impugned in the writ petitions, is quoted hereunder: “Central Electricity Supply Utility of Odisha Head office: 2nd Floor, IDCO Towers, Janapath, Bhuabneswar-751022 Telephone-2541 727, Fax-2543 125. Ref.No.CESU/HR/18-11/2012(Vol-II)/259, Date-4th January, 2020 To The Additional Secretary to Government Department of Energy, Government of Odisha. Sub: Regularisation of 121 Non-ITI personnel working in O&M Activities to the post of Helper Trainee. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 10 of 63 Ref: Your office letter No.ENG-RR-DISTCOM-0025-2017/10144/En, dtd.26.11.2019. Sir, In inviting reference to the subject cited above and the letter under reference it is to intimate you that the Management Board of CESU in it 45th meeting held on 02.09.2015 decided that the case of regularisation of the 121 Non-ITI personnel working in O&M Activities to the post of Helper (Trainee) cannot be considered in view of the judgment passed by the Hon‟ble Apex Court in Secretary, State of Karnataka and others Vrs. Umadevi (3) and others Vide Case No. Appeal(Civil) 3595-3612 of 1999 and reported in (2006) 4 SCC 1. Further, the Board Members in the 49th Board meeting held on 24.09.2016, again deliberated on the matter of regularisation of the 121 outsourced personnel and re-confirmed that their case for regularisation cannot be considered in light of above stated judgments of the Apex Court. However, it was also decided that they may be given some weightage whenever fresh recruitment for relevant posts will be done by CESU. These decisions of the Management board of CESU have been communicated to their Union i.e. Odisha Rajya Bidyut Shramika Karmachari Engineers Ekta Manch & OSEB Employee Federation vide letter no.17555 dtd 01.08.2016 and 24558 dtd.24.10.2016 respectively. This is for your kind information please. Yours faithfully. Sd/- Sr. General Manager (HR)” W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 11 of 63 2.6. To ventilate grievance, the present petitioners have approached this Court by way of filing writ petitions, registered as W.P.(C) Nos.13753 of 2020 and 13752 of 2020. Hearing: 3. On consent of the counsel for respective parties, analogous hearing of the writ petitions was taken up as the pleadings in both the matters are complete and issue involved in both the cases is identical. 3.1. Accordingly, heard Sri Budhadev Routrary, learned Senior Advocate assisted by Sri Jagdish Biswal, learned Advocate appearing for the petitioners in both the writ petitions and Sri Bijay Kumar Dash, learned Advocate for the opposite party Nos.1, 2, 4 & 5. 3.2. On conclusion of hearing, the matters are kept reserved for preparation and pronouncement of the judgment/ order. Rival contentions and submissions: 4. Sri Budhadev Routrary, learned Senior Advocate along with Sri Jagdish Biswal, learned counsel appearing for the petitioners drawing attention of this Court to paragraph-9 of the counter affidavit filed by opposite party No.5 submitted that the stand taken by the opposite party that the petitioners do not have the W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 12 of 63 requisite qualification and not involved in the Operation and Maintenance activities, is not borne on record. 4.1. It is submitted that the opposite parties could not deny regularization in service of the petitioners who have been engaged to perform the work of Helper since 2005 and the CESU authorities should have adhered to the terms of bi-partite settlement of the year 2010. Even otherwise, since the petitioners have requisite qualification and have been continuing to discharge the work entrusted to them without any blemish, turning down their claim is unwholesome, illogical and irrational. 4.2. Drawing attention of this Court to Minutes of discussion held on 03.12.2009 between the Management of CESU and the Odisha State Electricity Board Employees Federation submitted that all pros and cons were examined by the Management with respect to “all categories of contract workers” including the “ITI and Non-ITI (Helper)” who have already been “engaged in the job of perennial nature” for regularization. Settlement has been arrived at between the Management of CESU and the Odisha State Electricity Board Employees Federation on 08.06.2010 with respect to outsourced Non-ITIs, working in Operation and Maintenance activities; and those who had already completed one year engagement in CESU through outside agency. Since the W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 13 of 63 petitioners have the requisite qualification, their case cannot be ignored. 4.3. A Letter dated 09.08.2010 was issued by the opposite party No.2 requiring all General Managers and Other Managers of Circles and Divisions to forward filled in application from eligible candidates. A writ petition being W.P.(C) No.4188 of 2011 was filed at the behest of one security guard and the OSEB Shramika Mahasangha in which the selection process of post of Helper (Trainee) was stayed. However, said case was dismissed by order dated 11.08.2011. Thereafter, the opposite parties regularized services of similarly situated Non-ITI Helpers of different Divisions. 4.4. Having utilized the services of the petitioners for such a long period and making them await for consideration of their regularization in service with assurance that the benefit of bi-partite settlement would be extended to them as has already been worked out for certain other similarly situated personnel, by taking shelter of Secretary, State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1, at this distance of time would not only violate right to be considered for employment but also impinge avowed object of protection conferred under the Constitution of India through Article 14. 5. Sri Bijay Kumar Dash, learned Advocate for the opposite parties would defend the rejection of claim of the W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 14 of 63 petitioners vide Letter No.04.01.2020 issued by the Senior General Manager (HR) of Central Electricity Supply Utility of Odisha, wherein the reason ascribed is this: “*** Further, the Board Members in the 49th Board Meeting held on 24.09.2016, again deliberated on the matter of regularisation of the 121 outsourced personnel and re- confirmed that their case for regularization cannot be considered in light of above stated judgment of the Apex Court. However, it was also decided that they may be given some weightage whenever fresh recruitment for relevant posts will be done by CESU. These decisions of the Management Board of CESU have been communicated to their Union, i.e., Odisha Rajya Bidyut Shramika Karmachari Engineers Ekta Manch and OSEB Employees Federation vide Letter No.17555, dated 01.08.2016 and 24558, dated 24.10.2016 respectively. ***” 5.1. Learned counsel for the opposite parties laid emphasis on the stance taken in paragraph-9 of the counter affidavit, which is extracted hereunder: “9. That with regard to the averments made in para-9 of this application, it is humbly submitted that it is not a fact that because of the interim stay, the cases of 121 of Non-ITI persons were not considered. The communication dated 09.08.2010 was purely invite applications from outsourced intended to helpers engaged in Operation & Maintenance activities for the post of Helper (Trainee) vide Letter No.37660, dated 09.08.2010 (Annexure-4 to the writ W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 15 of 63 petition). Only shortlisted candidates were called for Desk-top test and interview. Since the petitioners had no in Operation & their cases were not Maintenance activities, considered for the post of Helper (Trainee). relevant experience The Hon‟ble High Court vide order 04.08.2011 in WP(C) No.4188 of 2011 has mentioned that the settlement applies to those Non-ITI‟s who are in Operation & Maintenance actually working activities and the Security Guards have never participated in Maintenance & Operation activities. And, hence cannot take the advantage of settlement and claim for regularization. In the similar circumstances since the petitioners, do not have experience in Operation and Maintenance their cases were not considered for activities regularization.” 5.2. With such assertion, Sri Bijay Kumar Dash, learned Advocate for the opposite parties urged to dismiss the writ petition, being sans merit. CONSIDERATION OF RIVAL CONTENTIONS: 6. It is fact that the petitioners are Non-ITI Workers/ Helpers engaged through outsourcing agency during 2005-07. Since then they have been rendering service to the opposite parties (erstwhile Organisation as also present Organisation). Scrutiny of documents enclosed to the writ petition as Annexure-1 series relating to experience certificates issued by authorities demonstrates that these Non-ITI workers have been W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 16 of 63 utilised in the performance of maintenance of 11 KV Line, LT Line and also as electricians in Operation and Maintenance work. Such documents, which apparently show that they have gained experience in the Operation and Maintenance Work, have been relied on by the petitioners and the same are not denied or disputed by the opposite parties in the counter affidavit. Nonetheless, the opposite parties have emphatically disputed the fact that only Non-ITI Workers who had experience in Operation and Maintenance activities were considered for Helper (Trainee) in the selection process. 6.1. Be that as it may, it has been averred in the rejoinder of the petitioners that it is the Bi-partite Settlement which is binding inter se parties in view of Section 18(3) of the Industrial Disputes Act, 1947. POSITION AS TO REGULARISATION IN SERVICE: 7. It is pertinent to notice following observation made in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005, reported at 2016 (I) ILR-CUT 373: “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 W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 17 of 63 8. 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. offices. 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 or The word initial cover not merely appointment‟ 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 made the provisions and procedure envisaged under the law and guidelines governing the field. in accordance with „employment the 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. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 18 of 63 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.” 7.1. 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 behest of Biju Patnaik University of Technology, stood dismissed. 7.2. So far as regularization of services, in a catena of decisions the Hon’ble Supreme Court of India dealing illuminatingly with the concept of regularization, in the case of Narendra Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, said as follows: W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 19 of 63 “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 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.” the services of the 7.3. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows: in paragraph 53 of the “12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception judgment carved out 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‟. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 20 of 63 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 „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: „irregular‟ and regard to „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 be 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.” W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 21 of 63 7.4. 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 irregular Annexure-4 that the petitioners being 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 against 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: *** to permit 10. The object behind the exception carved out in this case was 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 W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 22 of 63 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 illegal difference between appointments in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, this Court held as under: irregular and „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 the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed and continued him in service voluntarily and continuously for more than ten years. employee the (ii) The appointment of such employee should not be if irregular. Where the appointments are not made or continued against the sanctioned posts or where illegal, even W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 23 of 63 prescribed the person persons appointed do not possess the minimum qualifications, the appointments will be considered to be illegal. But where employed possessed prescribed the qualifications and was working against sanctioned posts, but selected without had undergoing the process of open competitive such appointments are considered to be irregular.‟ selection, been 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 to that is clear is required the existence of the need for creation of the posts is a relevant factor with reference to which the executive government 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 itself would be decades together W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 24 of 63 arbitrary action (inaction) on the part of the State. 36. The other factor which the State is the posts financial burden on is required to keep in mind while creating or abolishing financial implications involved in such a decision. The creation of posts necessarily means additional the exchequer of the State. Depending upon the priorities of the State, the allocation of is no doubt exclusively the finances within the domain of the legislature. However in the instant case creation of create any new posts would not 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. the If absorbing services of the State and providing 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 to meet such additional the banks 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.‟***” the appellants into 7.5. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 25 of 63 2014 SC 1716; Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022. 7.6. 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 formed on 15 the State was 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 held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa („the Niyamawali, Niyamitikaran 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]. 2015 W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 26 of 63 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 workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority 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 list W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 27 of 63 the judgment. If it becomes necessary to grant age relaxation to the concerned workmen, the Appellants shall do so.” 7.7. 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. ***” 7.8. 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 services. seeking 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 of normal appointment. Such formalisation makes the appointment regular. The ordinary meaning of of applicable norms regularization rules his of W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 28 of 63 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 to uniform established plan, law, or principle. Antonym of “casual” or “occasional,” Palle Vrs. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290.‟ type; built or arranged according in dictionary, 8. The above being the meaning of “regular”, as per the in B.N. common parlance given 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, infirmities which attended the appointment are cured. Regularization, however, does not necessarily connote permanence. the procedural 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 in followed to methodology attributable making the appointments. Relying on the Judgments of the apex Court in B.N. Nagarajan Vrs. W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 29 of 63 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 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 on (mainly permanent basis. Needless to say that filling up by vacancies 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 consideration) sanctioned financial against posts on W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 30 of 63 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. *** from a for consideration 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) arose judgment of Karnataka High Court. In some of the cases, the the claims of Karnataka High Court rejected 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 W.P.(C) Nos.13753 of 2020 & 13752 of 2020 Page 31 of 63