The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.35714 of 2021 In the matter of an application under Article 226 & 227 of the Constitution of India, 1950. ……………… Biswanath Das …. Petitioner -versus- State of Odisha & Others …. Opp. Parties For Petitioners : Mr. K. P. Mishra, Sr.Advocate For Opp. Parties: : Mr. P.K. Panda, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY Date of Hearing: 08.09.2025 and Date of Judgment: 08.09.2025 ------------------------------------------------------------------------------ Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. // 2 //
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging office order dtd.22.10.2021 so issued by the Government-Opposite Party No.1 under Annexure-8. Vide the said order, claim of the Petitioner to get the benefit of regularization has been rejected. 4. It is the case of the Petitioner that Petitioner was engaged as a Peon on ad hoc basis with spell of 44 days starting from April 1992. Even though he was allowed to continue as such on ad hoc basis and was not regularized, Petitioner approached the Tribunal initially by filing O.A. No.672(C) of 2000. The Tribunal vide order dtd.23.02.2000 while disposing the O.A passed the following order:- ―Heard. Taken up on mention. The applicant is working as a peon (apparently on ad hoc ma capacity as seen from his appointment orders) in spells of 44 days starting from April 1992. In this original application he has prayed for regularization of his service with effect from 1.10.97 since from that date he is working against a retirement vacancy. The applicant has not been appointed following a regular selection.
Decision
The original application is therefore, disposed of with the direction that the post which he is holding shall not be filled up by another candidate on ad hoc basis and when steps are taken to fill it up in regular manner the applicant shall be allowed to take part in the selection along with other eligible persons and having regard to the fact that his services have been utilized in ad hoc capacity for a long period of seven years, his upper age limit be relaxed to facilitate his participation. Page 2 of 21 // 3 // Original application is disposed of.‖ 4.1. It is contended on the face of such order passed by the Tribunal, the post in question was never filled up by following due procedure of law and Petitioner was allowed to continue on ad hoc basis all through. 4.2. It is contended that since no such step was taken to fill up the post by conducting due recruitment in terms of the order passed by the Tribunal under Annexure-1 and Petitioner was allowed to continue on ad hoc basis all though staring from April 1992, Petitioner again approached the Tribunal by filing O.A. No.1133(C) of 2002, seeking regularization of his services. 4.3. It is contended that the Tribunal vide order dtd.26.07.2018 while disposing the matter issued the following direction so contained in Para-5:- ―5. In view of the fact that the applicant is working in the vacant sanctioned post of Peon at Mahanga Block for last more than 11 years by the time Annx.6 dt.8.7.2013 was issued and in view of the fact that there is no regular recruitment for filling up the post of Peon in Mahanga Block during these periods, the O.A. is disposed of by directing the Respd. Nos. 1 & 2 to take a decision in the matter of regularization of the service of the applicant, keeping in view Annx.6 & 7 within a period of three months from the date of receipt of a copy of this order and convey the result thereof to the applicant‖. 4.4. It is contended that the order passed by the Tribunal when was not implemented and the Tribunal Page 3 of 21 // 4 // got abolished, Petitioner approached this Court by filing W.P.(C) No.1252 of 2020. This Court vide order dtd.20.01.2020 under Annexure-7, directed Opposite Party No.1 to implement the order passed by the Tribunal on dtd.26.07.2018 in O.A. No.1133(C) of 2002. 4.5. It is contended that without proper appreciation of the Petitioner’s claim and his continuance on ad hoc basis w.e.f. April 1992, claim of the Petitioner was rejected vide the impugned order dtd.22.10.2021 under Annexure-8. 4.6. Learned Senior Counsel appearing for the Petitioner contended that Petitioner since April 1992 is continuing on ad hoc basis till date and in terms of the order passed by the Tribunal under Annexure-1, no selection process was ever undertaken to fill up the post on regular basis and by allowing the Petitioner to participate. 4.7. Placing reliance on the decisions in the case Uma Devi, (2006) 4 SCC-1, State of Karnatak vs. M.L. Keshari, (2010) 9 SCC 247, Amarkant Rai vs. State of Bihar & Others, 2015(8) SCC 265 and Nihal Singh vs. State of Punjab, 2013 (14) SCC 65 and recent decisions of the Apex Court in the case of Jaggo vs. Union of India & Ors., 2024 SCC OnLine SC 3826 and Shripal & Anr. vs. Nagar Nigam, Ghaziabad, 2025 SCC Page 4 of 21 // 5 // OnLine SC 221 as well as Dharam Singh & Ors. vs. State of U.P. & Anr. (Civil Appeal No(s).8558 of 2018, it is contended that Petitioner is eligible to get the benefit of regularization and appropriate direction be issued in that regard with quashing of the impugned rejection dtd.22.10.2021 under Annexure-8. 4.8. In the case of Uma Devi, Hon’ble Apex Court in Para-44 has held as follows:- (not ―44. One aspect needs to be clarified. There may be cases where illegal irregular appointments appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (Supra), and referred to in paragraph-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 courts or of tribunals. The question of regularization 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 regularize as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages 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 subjudice, need not be reopened based on this judgement, but there should be no the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.‖ further by passing of Page 5 of 21 // 6 // 4.9. Similarly Hon’ble Apex Court in the case of M.L. Keshari in Para- 8 and 13 has held as follows:- (3) casts a duty upon “8. Umadevi the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). xxx (3) directed xxx xxx 13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should not undertake an exercise within six months, as a general one- time regularisation exercise, to find out whether there are daily-wage/casual/adhoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para-53 of Umadevi (3). If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3), their services need not be regularised. If the employees who have completed ten years’ Page 6 of 21 // 7 // service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.‖ 4.10. In the case of Nihal Singh, Hon’ble Apex Court in Para 35, 36 and 38 of the decision has held as follows: 35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on 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 appellants into the services of the State and providing benefits at 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 the banks to meet such additional 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. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a Page 7 of 21 // 8 // practice consistent with their obligation to function in the Constitution. Umadevi‘s accordance with judgment cannot become a licence for exploitation by the State and its instrumentalities. xxx xxx xxx 38. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify to the costs Rs.10,000/- to be paid to each of the appellants.‖ 4.11. In the case of Amarkanta Rai, Hon’ble Apex Court in paragraph-4,11,12,13,14 & 15 has held as follows: 4. The learned counsel for the appellant contended that the appellant served on the post for 29 years on daily wages and even as per the decision in para 53 in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , irregular appointment of employees who have worked for more than 10 years should be considered on merits. It was contended that the appellant has in a sanctioned post and his been working appointment was not illegal but in the facts and circumstances of the case, his appointment could only for be regularisation. It was submitted that the three- member Committee as well as the High Court did not keep in view that the case of the appellant was recommended for regularisation. appointment irregular entitling him xxx xxx xxx the principles