The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 18172 OF 2024 In the matter of an application under Articles 226 & 227 of the Constitution of India Pritiranjan Mahaling …. Petitioner -Versus- State of Odisha & others …. Opp. Parties Advocates appeared in this case: For Petitioner : For Opp. Parties : M/s. L. Mohanty, R. Das & S. Das, Advocates
Legal Reasoning
Mr. J.K. Ray, Addl. Standing Counsel CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD J U D G M E N T ---------------------------------------------------------------------------------------- Date of hearing & judgment : 04.09.2025 ---------------------------------------------------------------------------------------- Page 1 of 7 PER DIXIT KRISHNA SHRIPAD,J. Petitioner, who was appointed on ad hoc basis vide order dated 13.11.1991 at Annexure-1, is knocking at the doors of Writ Court essentially to have a direction for regularization of his services, which request has been turned down by the jurisdictional OPs. 2. Learned counsel appearing for the Petitioner vehemently argues that a Model State like ours under the Constitution cannot keep the employees of the kind with a ‘Damocles Sword’ hanging on the head without regularization of their services for decades; he also tells the Court that the four conditions mentioned in the appointment order would not operate at all, inasmuch as three of them depend on the happening of the recruitment process stipulated in condition no.1 and therefore, all these conditions should be deemed to have been complied with or waived. He further submits that whatever arguable irregularity at the entry level existed, would diminish by the run of time and at this length of time, it completely evaporates. In support of his case, he cites a Division Bench decision of this Page 2 of 7 Court in W.A. No.857 of 2024 & batch between Orissa Water Supply and Sewerage Board v. Bijay Kumar Samal & Ors. decided on 30.07.2025. 3. The OPs have not filed any counter or objections to the petition and therefore, ordinarily the petition averments need to be taken with their face value, subject to exceptions, into which argued case of the Petitioner does not fit. Learned ASC appearing for the answering OPs resists the petition contending that the very entry of Petitioner was not legally permissible; the four conditions mentioned in the appointment order dated 13.11.1991 have not been complied with, though twice recruitment was undertaken; howsoever long a service may continue, the pollution at the entry level is not wiped out; even otherwise in the light of State of Karnataka v. Uma Devi, (2006) 4 SCC 1, petitioner cannot be granted any relief. Having so contended, he seeks dismissal of the petition. 4. Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: Page 3 of 7 4.1. The Petitioner gained entry to the public service vide order dated 13.11.1991 and that, he has been continuing without any interruption. Further that there is no complaint whatsoever against him in the matter of employment, is apparent from the record. The law relating to regularization of services commencing from the famous Daily Wager’s cases, namely, The Dharwad Distt. P.W.D. Literate v. State of Karnataka & Ors., AIR 1990 SC 883 to Uma Devi supra and therefore to State of Karnataka v. M.L. Kesari, AIR 2010 SC 2587, is well settled. If the entry is illegal, no relief can be granted to the employee, is true. However, this is not a case of illegal entry at all. Secondly, whatever irregularity the entry was arguably suffering from, would wither away by the long lapse of time. An argument to the contrary would amount, to put it metaphorically, digging the grave with no purpose. 4.2. In more or less similar fact matrix, a Division Bench of this Court, having surveyed the law relating to regularization, has granted relief to employees of the kind in Bijay Kumar Samal & Ors. supra and therefore, Page 4 of 7 Petitioner cannot be denied the similar relief. In the said decision, paragraphs 6.2 & 6.3 read as under: “6.2. The vehement submission of learned panel counsel appearing for the Board that the very initial entry of the respondents to the service is illegal and therefore no regularization/absorption would have been granted in terms of Umadevi supra cannot be acceded to and easons for this are many: Firstly, Section 9(1) of the Act says “The Board may appoint such officers and employees as it considers necessary for the efficient performance of its duties and discharge of its functions against posts sanctioned by the State Government.” Secondly, it is specifically admitted in the statement of objections filed in the writ petitions that the Board has engaged the services of these respondents…. Therefore, the ratio in Umadevi supra would not come to the aid of Appellant Board, initial entry being absolutely legal. 6.3. Illegality is one thing and irregularity is another, even if arguably they are not polls asunder. At times, the difference between these two, sages of law like Fedric Pollock say, more often than not, is in degrees & not in kind. In a constitutionally ordained Welfare State its instrumentality like the Board cannot be permitted to contend that although it made the appointments in question, the same are marred by illegality, especially when they are not, for the reasons already discussed above. Here are employees who have been shading their sweat, if not blood, to the soil in the discharge of their functions for more than twenty five years. Firstly, a perpetrator of illegality, if at all these appointments are of the kind, cannot be permitted to take the advantage of its own illegal act. Secondly, whatever arguable illegality at the entry level of employment would diminish year by year and become nil at least after a quarter century, as a concession to the shortness of human life. One cannot dig the grave profitably, the dead having gone with the winds long ago once for all. Therefore, the entry of these respondents is at the most can be termed as irregular and therefore Umadevi cannot be chanted like mantra to defeat their legitimate expectation, if not right.” Page 5 of 7 4.3. Learned counsel for the Petitioner is more than justified in contending that denial of regularization vide order dated 03.06.2024 issued by OP No.2 at Annexure-10 is bereft of law and justice. The latest position of law, as repeatedly declared by the Apex Court post Uma Devi supra in the light of M.L Kesari supra and Dharam Singh v. State of U. P., 2025 INSC 998, shows that the impugned order runs counter to Regularization Jurisprudence. The four conditions stipulated in order dated 13.11.1991 at Annexure-1 are not invokable, because three of them depend upon the first condition largely. The invocation of said first condition is permissible only if OPs had undertaken the recruitment drive within a year or two after petitioner was engaged; such a contingent thing having not happened, learned ASC is not right in pressing into service the said conditions, when such recruitments were undertaken only in 2010-11. 4.4. The last contention of learned ASC that the recruitment process twice happened and the Petitioner did not qualify, would not much come to the rescue of OPs, inasmuch as even after the said incident Petitioner has been continued in service for more than a decade, total length of service Page 6 of 7 being more than three decades. Had the condition not been complied with, he could have been told to go home as has been stipulated at Annexure-1 itself. That has not been done and that itself shows that the Petitioner is working against the regular vacancy and his services are eminently needed. In the above circumstances, this petition is allowed; a Writ of Certiorari issues quashing the impugned order dated 03.06.2024 at Annexure-10; a Writ of Mandamus issues to OP Nos.2 & 3 to regularize the services of Petitioner with effect from the date the second recruitment process was undertaken, and pay him all consequential benefits within a period of three months and report compliance to the Registrar General of this Court. Now, no costs. Web copy of this judgment to be acted upon by all concerned. Orissa High Court, Cuttack The 4th day of September, 2025/Madhusmita Dixit Krishna Shripad, Judge Signature Not Verified Digitally Signed Signed by: MADHUSMITA MALLICK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Sep-2025 11:24:23 Page 7 of 7