Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.24545 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** 1. Bijay Kishore Nath Aged 51 years Son of Lachhman Nath Driver, Office of DCCT (Enf.) Range Balasore. 2. Prakash Khatua Aged about 44 years Son of Jugal Kishore Khatua Driver, Office of ACCT, Boudh Circle Boudh. 3. Dillip Kumar Biswal Aged 53 years Son of Late Narasingha Biswal Driver, Office of Addl. CCT, Cuttack-I Range Cuttack. 4. Chitta Ranjan Sahoo Aged 44 years Son of Debendranath Sahoo Driver, Office of DCCT, Bhubaneswar Circle-III, Khorda. 5. Kailash Chandra Swain Aged 41 years Son of Late Padmanav Swain Driver, Office of Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack. W.P.(C) No.24545 of 2021 Page 1 of 82 6. Jayanta Kumar Bastia Aged 45 years Son of Ghanasyama Bastia Driver, Office of DCCT, Paradip Range Jagatsinghpur. 7. Haladhar Mohapatra Aged 45 years Son of Late Nityananda Mohapatra Driver, Office of DCCT, Dhenkanal Circle Dhenkanal. 8. Krupasindhu Mohapatra Aged 41 years Son of Late Arjun Mohapatra Driver, Office of DCCT, Jatni Circle Jatni, District: Khordha. 9. Uma Sankar Mohapatra Aged 40 years Son of Laxmi Ch. Mohapatra Driver Office of Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack. 10. Sarat Kumar Gouda Aged 50 years Son of Hari Gouda, Driver Office of ACCT, Ganjam Range Berhampur, Ganjam. 11. Biswajit Parida Aged 44 years Son of Laxman Parida, Driver Office of Commissioner of Commercial Tax & Goods and Service Tax Odisha, Cuttack. … Petitioners. -VERSUS- W.P.(C) No.24545 of 2021 Page 2 of 82 1. State of Odisha Represented through Principal Secretary Finance Department Odisha Secretariat Bhubaneswar, Khordha. 2. Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Banijyakar Bhawan Cuttack … Counsel appeared for the parties: Opposite parties. For the Petitioners : M/s. Bhabani Sankar Tripathy-1, Atul Tripathy and Amit Sahoo, Advocates For the Opposite parties : M/s. Sailaza Nandan Das and Tarun Patnaik, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 25.07.2024 :: Date of Judgment : 16.08.2024 MURAHARI SRI RAMAN, J.— J UDGMENT The petitioners, drivers of the Head Office and the different Ranges and Circles under the Commissionerate of Commercial Tax & Goods and Service Tax, laid challenge against Order No.1245-SMNG-HC- 51/2020/CT&GST, dated 07.08.2021 of the W.P.(C) No.24545 of 2021 Page 3 of 82 Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack, in refusing to regularise their contractual service against sanctioned post by way of filing the instant writ petition under Article 226/227 of the Constitution of India with the following prayer(s): “On the facts and in the circumstances stated above, your petitioners, therefore, pray that this Hon’ble Court be pleased to; i) ii) the quash impugned Order No.1245 dated 07.08.2021 of the opposite party No.2 in Annexure- 17 by holding the same as illegal and bad in law and thereby; in its services as Drivers direct the opposite party No.2 to forthwith issue formal orders in favour of the petitioners regularizing their various establishments with effect from the date of their completing six years of contractual services in the scale of pay PB-1-Rs.5,200-20,200/- + GP Rs.1900/- with usual allowances admissible from time to time per General Administration Department as Resolution dated 17.09.2013 and in the same manner as has been allowed to similarly situated contractual Drivers and employees in Annexure-13 Series and as per the law laid down by the Apex Court in the case of State of Karnataka Vrs. Umadevi (3), reported in (2006) 4 SCC 1, State of Karnataka Vrs. M.L. Kesari, reported in (2010) 9 SCC 247 and all subsequent similar judgments; iii) pass such other order(s) as deemed fit and proper in the bona fide interest of justice and fair play and; W.P.(C) No.24545 of 2021 Page 4 of 82 iv) for which act of your kindness, petitioners shall as in duty bound, ever pray.” Facts: 2. Facts as unfurled by the writ petitioners, the following contours of service records are revealed: Petitioner No.1: i. He had applied for the post of Driver created in Finance Department Letter No.4329, dated 0l.02.2008 in lieu of one vacant post of Junior Clerk in Sundergarh Range in the Office of Assistant Commissioner of Commercial Tax (Enforcement Range), Balasore on contractual basis at a consolidated salary of Rs.3,000/- per month through his application dated 11.12.2009. ii. He appeared before the Selection Committee held on 22.12.2009 in the Office of the Deputy Commissioner of Commercial Tax, Enforcement Range, Balasore and stood first in the merit list. Thereafter, on the recommendation of the Selection Committee, the petitioner was given appointment as Driver on contractual basis for a period of one year on a consolidated remuneration of Rs.3,000/- per only as per Finance Department Memo No.32986, dated 07.07.2008 in the Office of the Deputy Commissioner of Commercial Tax, Enforcement Range, Balasore vide Office Order W.P.(C) No.24545 of 2021 Page 5 of 82 No.491 dated 30.12.2009. Having joined the post on 31.12.2009, he has been continuing as such till date. Petitioner No.2: i. He was selected in the selection process initiated for filling up of one post of Driver in Office of Commercial Tax Officer, Boudh Circle out of 12 posts of Drivers created by Finance Department vide Letter No.4331, dated 0l.02.2008 for its different Circle Offices, and was appointed vide Order No.1122 dated 22.05.2013 of the Joint Commissioner of Commercial Tax, Sambalpur Range with consolidated remuneration of Rs.5,200/- per month upto the period ending 28.02.2014. Having joined the Office of Assistant Commissioner of Commercial Tax, Boudh Circle on 24.05.2013, he has been continuing as such till date on annual extension basis. Petitioner No.3 i. He was initially engaged as Driver on Daily Wage basis in the Office of Assistant Commissioner of Commercial Tax, Bhanjanagar Unit since August, 2008. ii. Thereafter he was engaged on contractual basis against the post sanctioned by Finance Department W.P.(C) No.24545 of 2021 Page 6 of 82 with a consolidated monthly remuneration of Rs.3,050/- and he was posted vide Office Order No.634, dated 19.02.2010 of Joint Commissioner Commercial Tax, Ganjam Range, Berhampur until 28.02.2010. Thereafter, the Joint Commissioner of Commercial Tax, Ganjam Range, Berhampur issued Office Order No.639, dated 19.02.2010 posting him in the Office of Assistant Commissioner of Commercial Tax, Phulbani Circle and accordingly, he had joined on 22.02.2010 and continued there upto 02.06.2015 and thereafter he was deputed to Office of Deputy Commissioner of Commercial Tax (Vigilance), Berhampur Division. Subsequently, he was deputed to work in the Office of opposite party No.2 at Cuttack, where he is continued till date at Cuttack-I Range, Cuttack on his redeployment vide Office Order dated 30.11.2016. He has been continuing as such till date on annual extension basis. Petitioner No.4: i. He was selected by Selection Committee constituted by the Assistant Commissioner of Commercial Tax, Puri Range, Bhubaneswar for one post of Driver for Commercial Tax Officer, Bhubaneswar-III Circle out of 12 contractual Driver posts created by the Government of Odisha in Finance Department vide Letter No.4331 dated 01.02.2008 with a W.P.(C) No.24545 of 2021 Page 7 of 82 consolidated salary of Rs.3,000/- per month. Finally, the Assistant Commissioner of Commercial Tax, Puri Range in Office Order No.561 dated 27.03.2008 communicated the
Decision
order of appointment of the petitioner No.4 appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Bhubaneswar Circle-Ill. He had joined the post on 01.04.2008. His contractual engagement has further been extended from time to time annually. Petitioner No.5: i. He was selected by Selection Committee constituted by the Assistant Commissioner of Commercial Tax, Puri Range, Bhubaneswar for one post of Driver for Commercial Tax Officer, Bhubaneswar-III Circle out of 12 contractual Driver posts created by Government of Odisha in Finance Department vide Letter No.4331 dt.01.02.2008 with a consolidated salary of Rs.3,000/- per month. Finally the Assistant Commissioner of Commercial Tax, Puri Range in Office Order No.557 dated 27.03.2008 communicated the order of appointment appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms W.P.(C) No.24545 of 2021 Page 8 of 82 and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Bhubaneswar Circle-IV. He had joined his post on 01.04.2008. His contractual engagement has further been extended from time to time on annual extension basis. Petitioner No.6 i. In accordance with Finance Department Notification dated 31.03.2008 and Office Order dated 31.03.2008 of opposite party No.2, he was appointed as Driver on contractual basis with a consolidated monthly remuneration of Rs.3,050/- per month and was posted to the Office of Joint Commissioner of Commercial Tax, Angul Range vide Office Order No. 1861 dated 07.12.2009 of the Joint Commissioner of Commercial Tax, Angul, where he joined on 07.12.2009 and thereafter he was transferred to the Office of Deputy Commissioner of Commercial Tax, Keonjhar Circle vide Office Order dated 29.08.2016 and he joined on 01.09.2016. His contractual engagement has further been extended from time to time annually. Petitioner No.7 i. He was selected against one post of contractual driver for Dhenkanal Circle Office out 12 posts of contractual Drivers created vide Finance W.P.(C) No.24545 of 2021 Page 9 of 82 Department Letter No.4331 dt.Ol.02.2008 for different Commercial Tax Circle Offices at a consolidated salary of Rs.3,000/- per month. Thereafter, in accordance with Finance Department Notification No.14744/F dated 31.03.2008 and Office Order No.754 dated 31.03.2008 of the Commissioner of Commercial Tax, Odisha he was given appointment as Driver on consolidated salary of Rs.3050 per month on contractual basis upto end of February, 2010 and he was posted in the Office of Assistant Commissioner of Commercial Tax, Dhenkanal Circle vide order communicate through Memo.No.469 dated 25.02.2009 of Joint Commissioner of Commercial Tax, Angul Range. He had joined the post on 01.03.2009. His contractual engagement has further been extended from time to time annually. Petitioner No.8 i. He was selected through selection made by Assistant Commissioner of Commercial Tax, Puri Range against one post of contractual driver for Puri Range out 12 posts of contractual Drivers created vide Finance Department Letter No.4331, dated 01.02.2008 for different Commercial Tax Circle Offices at a consolidated salary of Rs.3,000/- per month. Finally, the Assistant Commissioner of Commercial Tax, Puri Range in his Office Order W.P.(C) No.24545 of 2021 Page 10 of 82 dated 27.03.2008 communicated the order of appointment appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Nayagarh. He had joined the post on 01.04.2008. His contractual engagement has further been extended from time to time annually. Petitioner No.9 i. He was employed as Driver on DLR Basis in the Office of Deputy Commissioner of Commercial Tax, Enforcement Range with effect from 25.01.2007. While continuing as such, the petitioner participated for being appointed as contractual Driver and upon facing the selection and Driving Test and in pursuance to the Finance Department Order dated 02.06.2008, he was provisionally appointed as Driver on contractual basis with a consolidated remuneration of Rs.3,050/- per month until 28.02.2010 vide Office Order No.11590 dated 23.06.2009 of the opposite party No.2. Subsequently, he was posted as contractual Driver in the Office of opposite party No.2 vide Order No. 11609 dated 23.06.2009. On and from the date of his joining on 23.06.2009, he has been continuing as such till date on yearly extension basis. W.P.(C) No.24545 of 2021 Page 11 of 82 Petitioner No.10: i. The Joint Commissioner of Commercial Taxes, Ganjam Range, Berhampur published Notice on 10.01.2013 in the Office Notice Board inviting applications from outsiders for filling up of one post of Driver on contractual engagement basis at Assessment Unit, Rambha, which post was out of 12 posts of Drivers created vide Finance Department letter No.4331 dt.Ol.02.2008. As per the aforesaid Notice, he faced the interview held on 11.01.2013 by the Selection Committee and on being provisionally selected, he was engaged as driver vide Office Order No. 105 dated 11.01.2013 of the Joint Commissioner of Commercial Tax, Ganjam Range, Berhampur for the post of Driver with consolidated remuneration of Rs.5,200/- per month from the date of his joining till 28.02.2013. Based on the engagement Order dated 11.01.2013, he joined on 14.01.2013 by submitting his joining report before the Commercial Tax Office, Assessment Unit, Rambha. Petitioner No.11: i. He joined the post of Driver on daily wage basis on 13.03.2008 and was posted to the Office of Commercial Tax Officer, Cuttack-I East Circle, Cuttack based on his selection made by the W.P.(C) No.24545 of 2021 Page 12 of 82 opposite party No.2. At that stage a single post of Driver in Cuttack-I, East Circle was created vide Finance Department Order No.28143 dated 02.06.2008 and permission was given to the opposite party No.2 vide Department Letter dated 29.08.2009 and Letter No.40545 dated 20.08.2009 to conduct selection to the said post, based on which the opposite party No.2 in Memo No.68/CT dated 03.01.2009 directed selection to the said post of Driver. In the said selection finally the petitioner was selected and was given appointment on contractual basis on a consolidated salary of Rs.5,200/- per month vide Memo No.4455, dated 24.09.2010 of Deputy Commissioner of Commercial Tax, Cuttack-I East Circle. Based on the said Office Order, the petitioner joined on 01.10.2010 and has been continuing as such on annual extension basis till date. 2.1. All these petitioners claimed to have been continuing to serve as drivers on contractual basis with unblemished outstanding service career till date. Submissions of counsel for the respective parties: 3. In the aforesaid background of engagement of drivers in the Commercial Tax & Goods and Service Tax Organisation, Sri Bhabani Sankar Tripathy, learned Advocate proceeded to place the material before this W.P.(C) No.24545 of 2021 Page 13 of 82 Court that during continuance of the petitioners in their respective offices, Government of Odisha promulgated a policy for regularization of services of existing contractual Group-C and Group-D employees working under the State Government vide General Administration Department Resolution No.26108/Gen., dated 17.09.2013. According to the said Resolution, on the date of satisfactory completion of six years of contractual service or from the date of publication of the Resolution, whichever is later, they shall be deemed to have been regularly appointed and a formal order of regular appointment shall be issued by the appointing authority. 3.1. Subsequently Government of Odisha in General Administration Department issued another Resolution on 16.01.2014 expressly clarifying earlier Resolution dated 17.09.2013 that proposal for regularization of contractual appointments/engagements as per the Resolution dated 17.09.2013 shall be considered and approved by the High Power Committee to be constituted under the Chairmanship of the concerned Department. 3.2. Sri Bhabani Sankar Tripathy, learned Advocate further submitted that apprehending disengagement of their contractual services because of the restrictions imposed by the Finance Department Memorandum dated 07.07.2020 due to Covid-19 pandemic and keeping in view the orders passed by this Court for regularization of W.P.(C) No.24545 of 2021 Page 14 of 82 similarly situated other contractual employees, the petitioners approached this Court in W.P.(C) No.22689 of 2020, which was disposed of on 10.09.2020, whereby this Court in Single Bench passed the following Order: “The petitioners have filed this application seeking for a direction to the opposite parties to regularize their services taking into account their continuous service of more than 12 years, as has been done in favour of the other similarly situated persons as per Government Circular and in terms of the principle decided in Secretary State of Karnataka and Others Vrs. Umadevi (3) and Others (2006) 4 SCC 1 and in State of Karnataka & Others Vrs. M.L. Kesari & Others involving SLP(C) No.15774/2006 [reported at (2010) 9 SCC 247]. Learned counsel for the petitioners submits that the petitioners were engaged on DLR basis. They have already rendered more than 12 years of service under the opposite party and therefore, seeks for regularization of services in view of the judgment passed by the Hon’ble apex Court in Secretary, State of Karnataka and Others Vrs. Umadevi (3) and Others (2006) 4 SCC 1 and in State of Karnataka & Others Vrs. M.L. Kesari & Others involving SLP(C) No.15774/2006. Considering the contentions raised by the learned counsel for the petitioners and after going through the records, it appears that the petitioners have rendered service for more than 12 years on DLR basis. Therefore, the case of the petitioners is squarely covered by the ratio decided in the cases cited supra. In that view of the matter, this Court disposes of this Writ Petition directing the opposite parties to consider the case of the petitioners and regularize their services keeping in W.P.(C) No.24545 of 2021 Page 15 of 82 view the judgment in the case of Secretary State of Karnataka and others Vrs. Umadevi (3) and Others (2006) 4 SCC 1 and in State of Karnataka & Others Vrs. M.L. Kesari & Others involving SLP(C) No.15774/2006 and also the Resolution of the G.A. Department dated 17.09.2013, within a period of four months from the date of communication of a copy of this order by the petitioners and grant consequential service benefits as due admissible to them. It is further directed that in the event the petitioners are still continuing in their services, status quo as on today in respect of the services of the petitioners shall be maintained till a decision is taken in the matter by the opposite parties in terms of the above direction.” 3.3. Since the aforesaid Order dated 10.09.2020 was not complied with, the petitioners filed petition for initiation of contempt giving rise to CONTC No.262 of 2021, which came to be disposed of on 20.01.2021 requiring the opposite parties to work out the Order dated 10.09.2020 within a period of one month. 3.4. While the matter stood thus, the opposite parties have filed appeal being W.A. No.79 of 2021 before the Division Bench, which came to be disposed of vide Judgment dated 21.06.2021, with the following observations: “*** 5. However, we are of the opinion that since these cases were disposed of on the first date of listing, a detailed order on merit of the contentions raised by the parties in the appellate stage for the first time W.P.(C) No.24545 of 2021 Page 16 of 82 will not be proper and expedient in the interest of justice. 6. Generally, an order directing the authorities to consider the representation of a petitioner is not a proper disposal of a writ petition. However, Courts in India have developed this method of directing disposal of representation because of the heavy pendency of the cases and limited number of Courts. 7. In all these writ petitions writs of mandamus have been issued by directing the appellants to regularise the services of the Petitioners without affording reasonable opportunity to the opposite parties- appellants to file counter affidavits and without giving a positive finding that they are entitled to be regularized in the given facts and law applicable. 8. In that view of the matter, we hereby allow these writ appeals in part and set aside the following portion of the order and direction of the learned Single Judge: ‘*** and regularize their services xxx xxx xxx and grant consequential service benefits as due admissible to them.’ In other words, we direct the appellants to consider the representation of the respondents in all these cases keeping in view the settled principles of law as stated by Hon’ble Supreme Court the judgments referred to above. For this purpose, the respondents in each cases are given liberty to file detailed representation along with duly attested copy of this Judgment within a period of twenty one days, which shall be considered by the authorities keeping in view the aforesaid consideration within a period of one month thereafter by a reasoned order in W.P.(C) No.24545 of 2021 Page 17 of 82 after affording reasonable opportunity of hearing to the Respondents.” 3.5. Sri Bhabani Sankar Tripathy, learned Advocate in furtherance of his argument highlighted that in view of Judgment of the Division Bench of this Court as referred to above, the petitioners having filed representation made the authority concerned aware of the factual aspects for consideration of their regularisation in service inter alia contending that: i. The petitioners were selected through a process of selection by facing interview by the Selection Committee and engaged against the sanctioned post of contractual Drivers created by Finance Department Letters dated 01.02.2008, 31.03.2008, 02.06.2008 and 07.07.2008 and have been allowed to continue by the opposite parties voluntarily and uninterruptedly till date. Hence, their cases are bound to be considered in the light of ratio of the Judgments in Secretary State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247. ii. As has been clarified by the Departmental authorities that as there was no recruitment Rules or executive instructions for recruitment of Drivers in Commercial Tax Organization, process of selection was made through advertisement as per the instructions and the directions of the W.P.(C) No.24545 of 2021 Page 18 of 82 Commissioner, Commercial Tax, Odisha. Having participated in the process of selection, the petitioners were selected and engaged. iii. Similarly situated contractual Drivers (colleagues of the petitioners) namely Narayan Sethi, Sarat Kumar Sahoo and Premakanta Prusty were regularized as per General Administration Department Resolution dated 17.09.2013 with retrospective effect and are extended consequential service benefits. Furthermore, other departments similarly circumstanced employees also got regularised. Therefore, it was forcefully urged that the petitioners are also entitled to similar relief for they cannot be discriminated in a manner the action of the authorities may attract vice of Articles 14 and 16 of the Constitution of India. iv. Based on General Administration Department Resolution dated 17.09.2013 various other Departments have already regularized contractual Group-C and Group-D employees. v. So far as engagement of contractual posts are concerned the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (for brevity, “ORV Act”) has got no application, as held by this Court in W.P.(C) No.6661 of 2018 and upheld by the W.P.(C) No.24545 of 2021 Page 19 of 82 Supreme Court in S.L.P.(C) No. 18642 of 2018 in the cases pertaining to Data Entry Operators engaged on contractual basis in the Commercial Tax Organization. vi. The petitioners have also relied upon recent Judgment of the Hon’ble Supreme Court passed by the three Judge Bench upholding similar orders of the Hon’ble Single Judge in S.L.P.(C) No.6851 and 6868 of 2021. 3.6. Having afforded the petitioners opportunity of personal hearing, the opposite party No.2 passed the order of rejection of the claim of the petitioners; which led them to approach this Court by way of the instant writ petition. 4. Per contra relying on the counter affidavit of the opposite party Nos.1 and 2 admitting that all the petitioners faced interview in response to the advertisement put up on the notice board, submitted that the authorities at the time of engagement of these petitioners have not followed the provisions of the ORV Act. 4.1. Be that be, laying stress on the General Administration Department Resolution No.26108-GAD-SC-RULES- 0009-2013/Gen., dated 17.09.2013 as clarified further in the General Administration Department Resolution vide No.1066-GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014, the Additional Standing Counsel W.P.(C) No.24545 of 2021 Page 20 of 82 strenuously urged that the requirements stipulated therein being not fulfilled in respect of petitioners-drivers who joined in their respective Offices of the Commercial Tax & Goods and Services Organisation during 2008- 2013, they are not eligible to be regularized in their service inasmuch as the principles of Secretary, State of Karnataka and Others Vrs. Umadevi (3) and Others (2006) 4 SCC 1 has no application to the fact-situation of the case. 4.2. It is asserted that in order to differentiate the nature of contractual appointments/engagements, i.e. type of cases deserves consideration for regular appointment, a checklist in diagrammatic depiction consisting of all the relevant Resolutions/Instructions/Circulars and the legal position as set forth by the Hon’ble Supreme Court of India in Umadevi (3), (2006)4 SCC 1 was circulated vide General Administration Department Letter No. 72l0(e)—GAD-SC-GCS-0169-2020/Gen, dated 03.03.2021 4.3. Since the cases of drivers have been considered in the light of Umadevi (3), (2006) 4 SCC 1 with reference to Resolutions and the Instruction(s), no infirmity can be attributed to the Order dated 07.08.2021 of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, Cuttack, as impugned by the petitioners at Annexure-17. W.P.(C) No.24545 of 2021 Page 21 of 82 4.4. It has been impressed upon this Court by the learned Additional Standing Counsel that factual aspects as involved and the opposite parties-employer(s) having considered the individual cases on its merits, and the scope of judicial review being limited, the case of the petitioners does not deserve indulgence as the Order dated 07.08.2021 vide Annexure-17 has been passed in consonance with the directions contained in the Order dated 10.09.2020 passed in W.P.(C) No.22689 of 2020 (Sanatan Bal and Others Vrs. State of Odisha and Others) as modified by virtue of the Judgment dated 21.06.2021 of this Court rendered in W.A. No.79 of 2021. 4.5. The petitioners, joined during 2008 to 2013, have been entrusted to work as drivers on annual renewal basis. All the eleven petitioners were not engaged by following process of open and transparent recruitment. Such engagement were made contrary to the eligibility criteria envisaged in the General Administration Department Resolution No.26108-GAD-SC-RULES-0009-2013/Gen., dated 17.09.2013 as clarified further in the General Administration Department Resolution vide No.1066- GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014. That apart, there was non-adherence to the requirements of the ORV Act. 4.6. Explaining further as regards claim of parity in treatment of the petitioners vis-(cid:224)-vis similarly situated persons, who have been considered for regularization, W.P.(C) No.24545 of 2021 Page 22 of 82 with reference to Article 14 of the Constitution of India, the argument of the learned Additional Standing Counsel engaged attention of this Court to the following factual position as reflected in the counter affidavit: “7. *** to (a) That 27 numbers of contractual drivers were engaged in different offices of Commercial Tax Organization against Government sanctioned posts prior issue of G.A. Department Resolution No.26108/Gen,, dated l7.09.20l3. Out of them, the contractual services of 3 (three) drivers of Cuttack-II Range (viz. Narayan Sethi, Sarat Kumar Sahoo and Premakanta Prusty) were regularised in pursuance ot Finance Department Letter No. 875/F, dated 11.01.2017 as they had fulfilled all the mandatory eligibility conditions prescribed in G.A. Department Resolution No.26108/Gen, dated. 17.09.2013 and Resolution No.l066/Gen, dated.16.01.2014. But the contractual services of the remaining 24 contractual drivers including the present Petitioners have not been regularised since all the mandatory eligibility conditions as prescribed in G.A. Department Resolution No.26108/Gen, dated 17.09.2013 and Resolution No.l066/Gen, dated 16.01.2014 have not been fulfilled in their case. (b) Similarly the contractual services of 2(two) Group-D Staff of CT & GST Organization (viz. Sashikanta Pradhan & Ramakrushna Sahoo) have also been regularised after completion of six years service in pursuance of Finance Department Letter No. 30226/F, dated 24.11.2015 as they were engaged through proper recruitment procedure. W.P.(C) No.24545 of 2021 Page 23 of 82 In pursuance of Order dated 17.05.2017 of the Odisha Administrative Tribunal passed in OA No. 2172(C) of 2015 (Jatin Kumar Das Vrs. State of Odisha & Others) and a batch of cases, which has been upheld by the Hon’ble High Court of Orissa vide Order dated 10.05.2018 in W.P.(C) No. 6661 of 2018 and by the Hon’ble Supreme Court of India vide Order dated 06.08.2018, the contractual services of the Data Entry Operators working in the CT & GST Organization have been regularised. But the mode of engagement and nature of duty of the present petitioners are quite different from that of the Data Entry Operators. (c) *** 10. That the Hon’ble Apex Court in the case of State of Rajasthan and others Vrs. Dayalal and Others, reported in (2011) 2 SCC 429 in paragraph 12 observed as follows: ‘We may at the outset refer to the following well settled principles relating to regularisation and parity in pay, relevant in context of these appeals. High Court in exercising the power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employee claiming regularisation had been appointed in pursuance of regular recruitment in accordance with relevant Rules in an open competitive process, against the sanctioned post. The equality clause contained in article 14 and 16 should be scrupulously followed and courts should not issue a direction for regularisation of service of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the W.P.(C) No.24545 of 2021 Page 24 of 82 elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointment contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.’ recruitment procedure nor That in the instant case, though the petitioner has been engaged against the sanctioned post but neither proper the reservation principles have been followed while engaging him. This violates the mandatory eligibility conditionality No. (ii) & (iii) as enumerated in GA Department Resolution No.26108/Gen, dated 17.09.2013 read with Resolution No.1066/ Gen, dated 16.01.2014. There is no discrimination or arbitrariness in passing the above order dated 07.08.2021, rather it is based on the Resolutions of referral Government judgments of the Hon’ble Apex Court.” in GA Department and 4.7. Having laid emphasis on the aforesaid reply filed by way of counter affidavit to the averments contained in the writ petition, the learned Additional Standing Counsel fervently urged to dismiss the writ petition. The impugned Order of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha: 5. Having considered the representation of the petitioners and affording opportunity of hearing to them through their counsel in compliance of the direction of this Court vide Judgment dated 21.06.2021 passed in W.A. No.79 of 2021, the Commissioner of Commercial Tax & Goods and Service Tax, Odisha proceeded to reject the claim for W.P.(C) No.24545 of 2021 Page 25 of 82 regularization of the petitioners with the following reasons: “6. The details of contractual engagements of the above 18 petitioners (contractual drivers) are given in the following table: Sl. No. Name and Office Date of joining as contr- actual driver Sanatan Bal, Assessment Unit, Talcher 07.12.2 009 Finance Department Letter No. and date in which contractual posts created/ permission granted to fill existing vacancy 14760/F, dtd. 31.03.2008 Mode of engagement Whe- ther reser- vation princ- iples follo- wed in Advertisement Office Notice Board followed by interview Basing on past experience as daily wage driver No No 15.04.2 011 4331/F., dtd.01.02.20 08 1. 2. 3. 4. 5. 6. Radheshyam Bhoi, Enforcement Range, Bhawanipatn (initially a posted in Sonepur Circle Prakash Khatua, Boudh Circle Dillip Kumar Biswal, Cuttack-I Range (initially posted Phulbani Circle) Bijay Kishore Nath, Enforcement Range, Balasore Sanjeet Kumar Bagh, Enforcement Unit, Jeypore (initially posed in 24.05.2 013 22.02.2 010 4331/F., dtd. 01.02.2008 28143/F, dtd.02.06.20 08 Pick and choose manner No No in Advertisement Notice Office Board followed by interview 04.01.2 020 4329/ F, 01.02.2008 dtd. No in Advertisement Notice Office Board followed by interview 01.07.2 011 33020/F, dtd. 07.07.2008 Basing on past experience as daily wage driver No W.P.(C) No.24545 of 2021 Page 26 of 82 in Vigilance 01.04.2 008 01.04.2 008 02.09.2 009 07.12.2 009 (A.N.) in Division, Koraput Padu Paraja, Nabarangpur Circle Chittaranjan Sahoo, Bhubaneswar- III Circle Kailash Chandra Swain, Commissioner ate of CT & GST, Odisha, Cuttack (initially in posted Bhubaneswar- IV Circle Jayanta Kumar Bastia, Jagatsinghpur Circle, (initially posted Angul Circle Haladhar Mohapatra, Dhenkanal Circle Krupasindhu Mohapatra, Jatni (initially posted Nayagarh Circle) Umasankar Mohapatra Commissioner ate of CT & GST, Odisha, Cuttack Dharamjit Mishra, Enforcement Range, Sambalpur Sarat Kumar Gauda, Ganjam Range Tapan Kumar 29.06.2 26.02.2 009 (A.N.) 23.05.2 013 01.04.2 008 27.06.2 009 14.01.2 013 Circle in 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 4331/F, dtd.01.02.20 08 4331/F, dtd.01.02.20 08 4331/ F, 01.02.2008 dtd. No No No Basing on past experience as daily wage driver in Advertisement Office Notice Board followed by interview in Advertisement Office Notice Board followed by interview 14763/F, dtd. 31.03.2008 No in Advertisement Notice Office Board followed by interview 4331/ F, 01.02.2008 dtd. 4331/F, dtd. 01.02.2008 in Advertisement Office Notice Board followed by interview in Advertisement Office Notice Board followed by interview 281431/F, dtd. 02.06.2008 Pick and choose manner (with recommendation of CCT his on application) No No No 4331/F, dtd. 01.02.2008 Basing on past experience as daily wage driver No 4331/F, dtd. 01.02.2008 28143/F, No in Advertisement Notice Office Board followed by interview Pick and choose No W.P.(C) No.24545 of 2021 Page 27 of 82 Sahoo, Commissioner ate of CT & GST, Odisha, Cuttack Biswajit Parida, Commissioner ate of CT & GST, Odisha, Cuttack (initially posted in Cuttack-I East Circle) Sunil Chandra Das, Enforcement Unit, Road Jajpur 17. 18. 009 dtd. 02.06.2008 manner (with recommendation of his on CCT application) 01.10.2 010 28143/F, dtd. 02.06.2008 No in Advertisement Notice Office Board followed by interview 06.05.2 010 3193/F, dtd. 15.01.2009 No in Advertisement Office Notice Board followed by interview 17.09.2013 read with 7. As per GA Department Resolution No.26108/Gen, dated Resolution No.1066/Gen., dated 16.01.2014, the following are for the mandatory regularisation appointments/ engagements on completion of six years of satisfactory contractual service. conditionalities contractual eligibility of (i) Contractual appointments/engagements must have been made against contractual posts created with Finance Department; concurrence of (ii) Such contractual appointments/engagements following proper must have been made recruitment procedure; (iii) Principle of reservation of posts must have been followed. In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolutions unless the above mandatory eligibility conditionalities are fulfilled. W.P.(C) No.24545 of 2021 Page 28 of 82 as such continuing The above petitioners have completed contractual services ranging from 8 to 13 years by now and presently annual extension/renewal basis subject to their satisfactory performance. But in case of the said petitioners, the condition stated at (i) above has been fulfilled but the conditions stated at (ii) & (iii) above have not been completely fulfilled for the reasons mentioned below: on (a) Some of them have been engaged through advertisement in Office Notice Board followed interview, some others have been by an engaged basing on their past services as daily wage workers and the rest on pick and choose manner as depicted in the preceding table. So, as evident, proper and transparent recruitment their process has not been adopted engagements. in (b) Reservation principles have not been followed in all the cases. So their contractual services cannot be regularised as per GA Department Resolutions dated 17.09.2013 and dated 16.01.2014. the said Judgment, 8. The Judgment in the Umadevi case cited supra was delivered by the Hon’ble Supreme Court on if 10.04.2006. As per appointments have been made against sanctioned posts and the persons so appointed possess the educational qualification (prescribed for the post) at the time of such appointment but the appointments have not been made as per proper recruitment procedure, such appointments are irregular. As an one-time relaxation measure, the Hon’ble Supreme W.P.(C) No.24545 of 2021 Page 29 of 82 Court have directed for regularisation of such irregular appointees who had been continuing in such appointment for at least 10 years as on the (i.e. 10.04.2006) without date of Judgment protection of any court order. Thus the ratio of Judgment in Umadevi case shall not apply to the contractual appointments/engagements made after contractual 11.04.1996 and of appointments/engagements which not are continuous for 10 years as on 10.04.2006. cases the Since the 18 petitioners of the present Writ Petition were engaged during the period 2008-2013, their cases are not squarely covered by the ratio decided in Umadevi case and as such they cannot be regularised as per the judgment of Umadevi case. 9. The Judgment dated 03.08.2010 of the Hon’ble Supreme Court in the M.L. Kesari case cited supra is extension/continuation of Umadevi Judgment dated 10.04.2006. In their Judgment dated 03.08.2010 in M.L. Kesari case, the Hon’ble Supreme Court have directed that the persons eligible for regularisation as per the Umadevi Judgment but left out due to oversight or otherwise be regularised as an extension of the one time measure decided therein. But the M.L. Kesari Judgment speaks nothing about new irregular appointment/engagements made after 10.04.2006. As such, the Judgment of M.L, Kesari case is not applicable in case of the present petitioners who have joined as Contractual Drivers on different dates during the period 2008-2013. *** 11. Government in GA&PG Department vide their latest Circular No. 7210(e)/Gen., dated 03.03.2021 in the W.P.(C) No.24545 of 2021 Page 30 of 82 is to examine the engagement of considered followed during they in matter of regularisation of contractual employees has prescribed a checklist for examination of each case. As per the said checklist, the only option left regularisation of present for consideration of petitioners their cases as per 2013/2014 Resolutions of GA Department, which requires 3 mandatory eligibility conditions contained in the said Resolutions (mentioned in paragraph-7 above). Since proper recruitment procedure and Principles of reservation as per ORV Rules have not the been for petitioners, cannot be regularisation the post of Driver as per Government in GA Department Resolutions of 2013/2014. There is no fundamental rights in those who have been employed in daily wages or temporarily or on contractual basis through pick and choose method to claim that they have a right to be absorbed in service. A regular appointment could be made only by making appointments consistent with requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed contractually cannot be extended to a claim for equal treatment with those who were regularly employed. That would amount to treating unequals as equals. In view of the above, the contractual services in the post of Driver in case of 18 petitioners of W.P.(C) No.22689 of 2020 do not qualify for regularisation with regular scale of pay against the sanctioned post and hence their claim for regularisation of contractual services is hereby rejected.” Legal perspective of regularization of contractual employees: W.P.(C) No.24545 of 2021 Page 31 of 82 6. With the above backdrop, before proceeding with the matter, it is felt apposite to discuss the legal position with respect to regularisation of service of contractual employees as set out by different Courts. 6.1. To begin with it is apt to refer to the anxious consideration shown by the Madras High Court in N. Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016, vide Judgment dated 22.04.2022 made with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of employees, whose services have been utilized by the Government for a long time: “18. If for the Courts cannot give direction their regularisation of service, in the constrained legal scenario what other remedies that are available to these unfortunate employees, who have been engaged in service for public purpose, without having any definite future to hold on? These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their concerned yearning future, with unresponsive indifference. for a definite 19. A welfare State grounded on constitutional values, cannot come up with apathetic and callous continued employment of these petitioners for years together, no semblance of right is available to them. Such stand by the State is opposed to constitutional values as enshrined in Article 21 of despite stand that W.P.(C) No.24545 of 2021 Page 32 of 82 the Constitution of India. The Courts of course have held that equal opportunity must be provided in public employment and entry through back door should be discountenanced. When Article 21, being violated by the State, action towards its servants, the consideration of the Government must primarily be focussed on alleviating legitimate grievances of its employees. Even assuming that the recruitment of these writ petitioners had not been in consonance with the procedure for appointment in Government services, the fact remained that these persons have been consciously appointed by the Government for implementing public projects and the work has been extracted from them continuously for several years. It is therefore, not open to the Government after a period of time to turn around and contend that these writ petitioners have no right at all to seek any kind of guarantee for their future. fully of a scheme/towards 20. In the opinion of this Court, continued employment for several years, even on a projects meant to serve the State as a whole, certain rights would definitely accrue to them, atleast to the extent of making a claim for formulation their absorption. This Court is quite conscious of the fact that the Government has been benevolent and had come up with several schemes in the past and directed regularisation of services of thousands of employees over a period of time. Such benevolence ought to permeate to the lowest levels to take within its sweep the desperate cry of the petitioners as well. As in the sublime words of the father of nation, Mahatma Gandhi, ‘A nation’s greatness is measured by how it treats its weakest members’. Merely because these writ petitioners have been employed W.P.(C) No.24545 of 2021 Page 33 of 82 in the projects, the policy makers may not shut their mind and close their eyes to their precarious plight having to serve public purpose but left in the lurch and unprotected, at the end of the day.” 6.2. Learned Single Judge of this Court in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005 [reported at 2016 (I) ILR-CUT 373], made the following observation: “7. In Binan Kumar Mohanty Vrs. Water and Land Management Institute (WALMI), 2015 (I) OLR 347 referring to Kapila Hingorani Vrs. State of Bihar, (2003) 6 SCC 1 the apex Court held that the Government companies/public sector undertakings being ‘States’ would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kopila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable. 8. In Narendra Kumar Ratha and Others Vrs. State of Odisha and Others, 2015 (I) OLR 197, this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in W.P.(C) No.24545 of 2021 Page 34 of 82 the offices. The word ‘employment public or 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 the provisions and made procedure envisaged under the law and guidelines governing the field. in accordance with 9. In Prabodh Verma and Others Vrs. State of U.P. and Others, (1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. 10. Similar view has also been taken by the apex Court in Km. Neelima Mishra Vrs. Harinder Kaur Paintal and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402 and E.P. Royappa Vrs. State of Tamil Nadu and Another, (1974) 4 SCC 3. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney Vrs. Union of India, 1992 Supp. (3) SCC 217 = AIR 1993 SC 477.” 6.3. The case of Prasana Kumar Mishra (supra) was carried in appeal before the Division Bench, giving arise to W.A. W.P.(C) No.24545 of 2021 Page 35 of 82 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. 6.4. Showing anxiety so far as regularization of services, in a catena of decisions the Hon’ble Supreme Court of India has succinctly and illuminatingly dealing with the concept of regularization, in the case of Narendra Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, has said as follows: “The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) [(2006) 4 SCC 1] is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate 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 6.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows: W.P.(C) No.24545 of 2021 Page 36 of 82 in paragraph 53 of the “12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception carved out judgment rendered in Umadevi (3) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still continuing, the same cannot be treated as an ‘illegal engagement’, rather it may be nomenclatured as an ‘irregular engagement’. 13. In State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410, wherein a distinction has been made with ‘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 W.P.(C) No.24545 of 2021 Page 37 of 82 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.” 6.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC OnLine Ori 267, it has been observed as follows: “9. With regard to the regularization of the services of the petitioners, a mention has been made in Annexure-4 that the petitioners being irregular recruits, their regularization is not permissible under the State Government Rules. But this condition made in the restructuring order in Annexure-4 so far as it relates to the petitioners cannot be applicable in view of the fact that the petitioners have been appointed against regular vacancies available in the regular scale of pay admissible to the post. But in view of their continued service for more than 10 years, their cases are covered by the ratio of the judgment of the apex Court in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR 2006 SC 1806, wherein the apex Court has held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular appointment of duly qualified persons against W.P.(C) No.24545 of 2021 Page 38 of 82 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: in as explained ‘53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services irregularly appointed, who have of such in duly worked sanctioned posts but not under cover of orders of the courts or of tribunals and should further are ensure undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be ten years or more recruitments regular that for W.P.(C) No.24545 of 2021 Page 39 of 82 reopened based on this judgment, but there the should be no constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.’ further by-passing of 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 question came up for consideration before the apex Court in Civil Appeal No. 2835 of 2015 (arising out of SLP (Civil) No. 20169 of 2013 disposed of on 13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265]. In paragraphs 12 and 13, the apex Court has held as follows: ‘12. Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between illegal 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 in against “regularisation” enunciated 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 W.P.(C) No.24545 of 2021 Page 40 of 82 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 prescribed illegal, even (ii) The appointment of such employee should not be if irregular. Where the appointments are not made or continued against sanctioned posts or where the 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.’ the person 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 that is clear 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 is required to W.P.(C) No.24545 of 2021 Page 41 of 82 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 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 the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the the State and providing services of 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 the appellants into W.P.(C) No.24545 of 2021 Page 42 of 82 burden. Apparently no such demand has ever been made by the State. The result is— the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.’***” 6.7. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716; Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022. 6.8. In the case of Union of India Vrs. Central Administrative Tribunal, (2019) 4 SCC 290 the following is the observation: “25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as 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 Niyamitikaran (‘the Niyamawali, 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 Page 43 of 82 2015 W.P.(C) No.24545 of 2021 doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Umadevi [(2006) 4 SCC 1], ML Kesari [(2010) 9 SCC 247] and Narendra Kumar Tiwari [(2018) 8 SCC 238]. 26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority list in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be considered in accordance with law. The Tribunal has W.P.(C) No.24545 of 2021 Page 44 of 82 denied back-wages but has ordered a notional fixation of pay and allowances. While affirming that direction, we also direct that persons who have crossed the age of superannuation will be entitled to the computation and payment of their retiral dues on that basis. This exercise shall be carried out within a period of three months from the receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the concerned workmen, the Appellants shall do so.” 6.9. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it has been stated as follows: “*** The Division Bench rightly held that the learned Single Judge has not followed the principle of law as given by this Court in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working. ***” 6.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of the Judgment runs as follows: “7. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no doubt the petitioner had approached the tribunal services. seeking Regularization in service law connotes official Page 45 of 82 regularization his of W.P.(C) No.24545 of 2021 rules of applicable norms 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 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 W.P.(C) No.24545 of 2021 Page 46 of 82 condone any procedural irregularities and are meant to cure only such defects as are in attributable followed to methodology making the appointments. Relying on the Judgments of the apex Court in B.N. Nagarajan Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the Constitution Bench of the apex Court in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 has also taken the same view, which has also been followed by the apex Court in Hindustan Petroleum Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2 SCC 717 and also in Hindustan Aeronautics Ltd. Vrs. Dan Bahadur Singh, (2007) 6 SCC 207. 10. Temporary or ad hoc or stop gap or casual basis or the like appointments are made for various reasons. An emergent situation might make it necessary to make such appointments. Since the adoption of the normal method of regular recruitment might involve considerable delay regulating in failure to tackle the 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 the of ad hoc or casual appointees, 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 vacancies by regularisation is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 and 16 of the consideration) sanctioned financial against posts on W.P.(C) No.24545 of 2021 Page 47 of 82 Constitution by not making the offer of employment to the world at large and allowing all eligible candidates equality of opportunity to be considered on merits. If that be so, considering the emergent necessity of filling up of vacancies and allowing the petitioner to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned. *** 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 Karnataka High Court rejected the claims of persons, who had been temporarily engaged as daily wagers but were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent employees and their entitlement to all the benefits of regular employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the State or local bodies. These claims were rejected by the Division Bench of the Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the W.P.(C) No.24545 of 2021 Page 48 of 82 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 three-Judge- Secretary, State of a Bench of Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and Secretary, State of Karnataka Vrs. Umadevi (2) (2006) 4 SCC 44, respectively, as they noticed the conflicting opinions expressed by the earlier 3 Bench judgments in relation to regularization.” 6.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C) No. 19951 of 2020, vide Judgment dated 09.09.2021, the Single Bench of this Court has made the following observation: “8. to ideal It is worthwhile to mention here that the Court comes to ensure observance of into picture only fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a its employees consistent with fair requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in contractual, temporary or ad hoc status for a long period. Where a contractual, temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may issuing direction W.P.(C) No.24545 of 2021 Page 49 of 82 arise on account of such direction. If for any reason, a contractual, ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person.” 6.12. Aforesaid Judgment rendered by the Single Judge of this Court in Patitapaban Dutta Dash (supra) got the seal of approval of this Court being carried in appeal before the Division Bench bearing W.A. No. 777 of 2021, which came to be disposed of vide Judgment dated 12.04.2023 [see, (2023) (I) ILR-CUT 906]. While directing the State of Odisha to implement the direction of the Single Judge “in letter and spirit”, this Court in the ultimate held as follows: “44. Going by the above legal position, in the present cases, at the highest, the respondents could be considered ‘irregularly’ appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularization. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain to be W.P.(C) No.24545 of 2021 Page 50 of 82
Decision
order to consider regularization of contractual appointees/engagements, besides such contractual posts are created with the concurrence of the Finance Department, recruitment procedure prescribed for the corresponding regular posts and principles of reservation of posts were required to be followed. 7.7. In the present cases of the petitioners, there is no cavil that the posts were created with sanction of the Government and the Finance Department concurred for the same. Besides this, the authorities at the Commercial Tax & Goods and Services Tax Organisation were well aware of the recruitment procedure, yet they, as employers, have with eyes open put the advertisement in the Office Notice Board and the Selection Committee selected the drivers and appointment/engagement letters were issued in their favour. There is no dispute about unblemished service rendered by the petitioners and it is also undeniable that the authorities at the Commercial Tax & Goods and Services Tax Organisation have been utilising their services throughout these W.P.(C) No.24545 of 2021 Page 60 of 82 years, since 2008-2013 till date without any complaint from any quarter. 7.8. The objection as to adherence to the principles contained in the ORV Act, it is the employer, namely the Commissioner Commercial Tax & Goods and Services Tax, who happens to be author of the impugned order, was required to have kept in mind the necessity of compliance of such reservation policy. After engaging the drivers on contractual basis, which is stated to have been renewed annually since their engagement till date, when the regularization of service fell for consideration, the very authority could not be allowed to shun his responsibility by saying that at the relevant point of engagement these criteria were not followed. 7.9. Nonetheless, these criteria stipulated in the aforesaid Resolutions have come to be published much after the engagement of these petitioners-drivers. Furthermore, notwithstanding such Resolutions having come to exist in the year 2013 and 2014, till date these petitioners- drivers have been given extensions and there is no objection as to discharge of duties. It is manifest from the data provided by the Commercial Tax & Goods and Services Tax Organisation in the counter affidavit referred to above that the petitioners have completed six years of satisfactory service and by now more than 10 years. W.P.(C) No.24545 of 2021 Page 61 of 82 7.10. These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their hopes and expectations for indefinite future with unresponsive indifference. 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. 7.11. It is fact admitted by the Commercial Tax & Goods and Services Tax Organisation that the engagements of the petitioners against vacant sanctioned posts were made after the Selection Committee upon interview selected them in connection with advertisement published on the Office Notice Board. In view of State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410; and Amarendra Kumar Mohapatra Vrs. State of Odisha,