The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12877 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Gopal Sahu …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. R. Das Nayak, Advocate For Opp. Parties : Mr. M.R. Mohanty Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.09.2025 and Date of Judgment: 09.09.2025 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode.
Legal Reasoning
2. Heard Mr. R. Das Nayak, learned counsel appearing for the Petitioner and Mr. M.R. Mohanty, learned Addl. Govt. Advocate appearing for the Opp. Parties. // 2 // 3. The present writ petition has been filed inter alia challenging order dtd.31.12.2021 so passed by Opp. Party No. 1 under Annexure-1. Vide the said order claim of the Petitioner to get the benefit of regularization was rejected. 4. Learned counsel appearing for the Petitioner contended that Petitioner was engaged as a DLR w.e.f.01.03.1993 in the establishment of Opp. Party No. 4. While so continuing w.e.f.01.03.1993, when he was disengaged w.e.f.01.02.1999, the matter was carried to the learned Labour Court, Sambalpur in I.D. Case No. 43 of 2002. Learned Labour Court vide award dtd.31.07.2009 under Annexure-2, held the retrenchment of the Petitioner w.e.f.01.02.1999 as illegal and directed for his reinstatement. Pursuant to the said order and in terms of order dtd.15.04.2010, Petitioner rejoined on 19.04.2010 as a DLR vide Annexure-3. 4.1. It is contended that since Petitioner is continuing as a DLR w.e.f.01.03.1993 and the order of disengagement passed on 01.02.1999 was interfered with by the Labour Court by holding such disengagement as illegal, it is to be held that Petitioner is in continuous employment as a DLR w.e.f.01.03.1993. However, on the Page 2 of 14 // 3 // face of such continuance, when Petitioner was not regularized, Petitioner approached this Court by filing W.P.C.(OAC) No. 43 of 2016. This Court vide order dtd.30.07.2021 under Annexure-10
Decision
disposed of the writ petition by directing the Opp. Parties to consider the claim of the Petitioner to get the benefit of regularization in terms of the decision of the Apex Court in the case of State of Karnataka vs. Uma Devi, (2006) 4 SCC-1, State of Karnatak vs. M.L. Keshari, (2010) 9 SCC 247 and Amarkant Rai vs. State of Bihar & Others, 2015(8) SCC 265. 4.2. However, without proper appreciation of the same, Petitioner’s claim to get the benefit of regularization was rejected vide the impugned order dtd.31.12.2021 under Annexure-1, inter alia on the ground that Petitioner was never engaged as a DLR w.e.f.01.03.1993 and such order of engagement has been issued by the then Executive Engineer without any proper authority. 4.3. Learned counsel appearing for the Petitioner contended that while dealing with the retrenchment in I.D. Case No. 43 of 2002, learned Labour Court gave a finding that Petitioner is continuing as a DLR w.e.f.01.03.1993. The award so passed was never assailed and instead was implemented by allowing the Petitioner to rejoin vide order Page 3 of 14 // 4 // dtd.15.04.2010, wherein Petitioner rejoined on 19.04.2010. In view of such clear finding of the Labour Court, the stand taken by Opp. Party No. 1 that Petitioner was never engaged as a DLR w.e.f.01.03.1993 cannot sustain legal scrutiny. Finding of the Labour Court so available in the award reads as follows:- “I must say that the second party workman with all preponderance of probabilities could establish that he was working under the first party management as D.L.R. continuously from 1.3.1993 to 1.2.1999.” 4.4. It is contended that in view of such clear finding of the Labour Court which was never assailed with its implementation, it is to be held that the Petitioner is continuing as a DLR w.e.f.01.03.1993 which is prior to cut-off date fixed by the Finance Department in its Resolution dtd.15.05.1997. It is accordingly contended that taking into account his continuance as a DLR w.e.f.01.03.1993 and the award passed by holding the retrenchment as illegal and engagement of the Petitioner as a DLR w.e.f.01.03.1993, the ground on which Petitioner’s claim has been rejected vide the impugned order is not sustainable in the eye of law. 4.5. It is also contended that in view of the recent decisions of the Hon’ble Apex Court in the case of Jaggo vs. Union of India & Ors., Page 4 of 14 // 5 // 2024 SCC OnLine SC 3826 and 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, Petitioner is eligible to get the benefit of regularization with quashing of the impugned order. 4.6. View expressed by the Hon’ble Apex Court in the case of Jaggo as cited supra in Para-22 to 25 and 27 reads as follows:- “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility 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 treatment ILO’s Multinational Enterprises of workers. The Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes in that enterprises should assume a promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment. leading role 24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a Page 5 of 14 // 6 // pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, judgment thereby underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should the employment corresponding rights and benefits. It highlights the judiciary’s role in rectifying such misclassifications and ensuring that workers receive fair treatment. their profits. This increasing determine status and in government institutions, often 25. It is a disconcerting reality that temporary employees, particularly face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: • Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. • Lack of Career Progression: Temporary from themselves for skill development, promotions, or employees often opportunities excluded find Page 6 of 14 // 7 // 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: increasingly resort Institutions to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances. xxxx xxxx xxxx to not only functioning, in providing 27. In light of these considerations, in our opinion, it is imperative lead by for government departments example fair and stable employment. 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, 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.” 4.7. Hon’ble Apex Court in the case of Shripal as cited (supra) in Para-14, 15, 17 & 18(IV) has held as follows:- “14. ...... More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting Page 7 of 14 // 8 // for years without the Employer undertaking legitimate recruitment. 15. ……. Indian labour law strongly disfavors perpetual daily-wage in contractual circumstances where the work is permanent in nature. engagements or xxx xxx xxx 17. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period. In assessing regularization, 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. the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable norms.” 4.8. Hon’ble Apex Court in the case of Dharam Singh as cited supra 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 that may arise upon a proper erases entitlements adjudication of the legality of those refusals. Page 8 of 14 // 9 // 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 refusing sanction, whether in 1999 or upon 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 dismissal without engaging with the principal challenge or the intervening material. The approach of both the Courts, in reducing the dispute to a mechanical enquiry about “rules” the core question of ignoring and “vacancy” while arbitrariness in the State’s refusal to sanction posts despite perennial need and long service, cannot be sustained. 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 for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed. Commission’s proposals concern the 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 reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public 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 Page 9 of 14 // 10 // 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 Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not 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 comparator regularisations, we issue the following directions: vacancies and indicating shall stand regularized with effect i. Regularization and creation of Supernumerary posts: All appellants 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. 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 effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues Page 10 of 14 // 11 // shall be paid within three months of this Judgment. 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. fresh technicalities, been met with 20. We have framed these directions comprehensively because, case after case, orders of this Court in such matters have rolling “reconsiderations,” and administrative drift which further prolongs the insecurity for those who have already laboured for 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, 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.” regularization, full 5. Even though notice of the writ petition has been issued since 02.08.2022, but no counter affidavit has been filed till date. However, basing on the materials available on record and the stand taken in the impugned order, learned Addl. Govt. Advocate contended that since Page 11 of 14 // 12 // Petitioner has not enclosed any document showing that he was engaged as DLR w.e.f.01.03.1993, Petitioner’s engagement as a DLR cannot be taken as 01.03.1993 and that it is prior to the cut-off date i.e.12.04.1993. 5.1. It is contended that pursuant to the order passed by the Labour Court under Annexure-2, Petitioner was reinstated vide order dtd.15.04.2010, where he joined on 19.04.2010. Therefore, Petitioner’s date of engagement is to be taken as 19.04.2010 so reflected in Annexure-3. Since Petitioner is continuing as a DLR w.e.f.19.04.2010, after the award was implemented and such date of engagement is much after the cut-off date i.e.12.04.1993, Petitioner is not eligible and entitled to get the benefit of regularization and his claim has been rightly rejected. 6. Having heard leaned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner while continuing as a DLR w.e.f.01.03.1993, when he was not allowed to discharge his duty w.e.f.01.02.1999, he moved the learned Labour Court in I.D. Case No. 43 of 2002. As found from the award available under Annexure-2, learned Labour Court while dealing with the issue, came to a clear finding that Petitioner was engaged as a Page 12 of 14 // 13 // DLR w.e.f.01.03.1993. The award so passed was never assailed by the State Machinery and instead in terms of the said award Petitioner was reinstated vide order dtd.15.04.2010, where he joined on 19.04.2010. 6.1. In view of such clear finding of the learned Labour Court in its award under Annexure-2, which was never assailed by the State, it is the view of this Court that Petitioner was engaged as a DLR w.e.f.01.03.1993. Since Petitioner’s engagement is prior to the cut-off date so fixed by the Finance Department in its Resolution dtd.15.05.1997 and Petitioner since 01.03.1993 is continuing as a DLR, placing reliance on the decisions in the case of Jaggo, Shripal as well as Dharam Singh as cited (supra), it is the view of this Court that Petitioner is eligible and entitled to get the benefit of regularization and the ground on which his claim has been rejected vide the impugned order dtd.31.12.2021 under Annexure-1 is not sustainable in the eye of law. 6.2. In view of the same, this Court is inclined to quash order dtd.31.12.2021 so passed by Opp. Party No. 1 under Annexure-1. While quashing the said order, this Court directs Opp. Party No. 1 to regularize the services of the Petitioner with passing of an appropriate Page 13 of 14 // 14 // order within a period of three (3) months from the date of receipt of this order. 7. The writ petition accordingly stands disposed of. Orissa High Court, Cuttack Dated the 9th of September, 2025/Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Sep-2025 15:42:02 Page 14 of 14