The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.38164 of 2021 In the matter of an application under Article 226 & 227 of the Constitution of India, 1950. ……………… Brundaban Samal …. Petitioner -versus- State of Odisha & Others …. Opp. Parties For Petitioners : Mr. K. Ray, Advocate For Opp. Parties : Mr. S.N. Pattnaik, Addl. Govt. Advocate 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 order dtd.24.09.2021 so passed by Opposite Party No.3 under Annexure-3. Vide the said order, while rejecting the prayer of the Petitioner to get the benefit of regularization as against the post of Peon, he was allowed the minimum of the pay scale applicable to the post. 4. It is contended that Petitioner was engaged as a Peon on daily wages basis w.e.f. 20.06.2009 vide office order issued under Annexure-1. On the face of such continuance on daily wage basis, when his services was not regularized, he approached this Court by filing W.P.(C) No.25548 of 2020. This Court vide order dtd.03.12.2020 when directed Opposite Party No.3 to take a decision on the Petitioner’s claim to get the benefit of regularization, the same was rejected vide the impugned order dtd.24.09.2021 under Annexure-3, but by allowing the minimum of the pay scale applicable to the post in question. 4.2. it is also contended that Petitioner was so engaged by facing due recruitment process and against a sanctioned post of Peon. Page 2 of 11 // 3 // 4.3. It is accordingly contended that the ground on which claim of the Petitioner was rejected vide the impugned order is not sustainable in the eye of law. 4.4. It is further contended that in view of the recent decisions of the Apex Court in the case of Jaggo vs. Union of India & Ors., 2024 SCC OnLine SC 3826;
Legal Reasoning
Shripal & Anr. vs. Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC 221, as well as Dharam Singh & Ors. vs. State of U.P. & Anr. (Civil Appeal No(s).8558 of 2018, Petitioner is eligible to get the benefit of regularization and appropriate direction be issued in that regard with quashing of the impugned order dtd.22.10.2021 under Annexure-8. 4.5. View expressed by the Hon’ble Apex Court in the case of Jaggo in Para-22 to 25 and 27 reads as follows:- “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and even greater justice, bear an responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. it not only mirrors temporary contracts, Page 3 of 11 // 4 // 23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO’s Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment. 24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that increasingly adopted the large Corporations have practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary’s role in rectifying such misclassifications and ensuring that workers receive fair treatment. It in government is a disconcerting reality that temporary 25. institutions, employees, particularly often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: • Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, Page 4 of 11 // 5 // and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. from opportunities themselves excluded • Lack of Career Progression: Temporary employees often find skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite contributions being equally significant. their for • Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially illness, retirement, or unforeseen circumstances. in cases of xxxx xxxx xxxx xxxxx 27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization’s functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.” Page 5 of 11 // 6 // 4.6. Hon’ble Apex Court in the case of Shripal in Para- 14, 15, 17 & 18(IV) has held as follows:- “14. ...... More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. 15. ……. Indian labour law strongly disfavors perpetual daily-wage in contractual circumstances where the work is permanent in nature. engagements or xxxx xxxxx xxxxx xxxxxx 17. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period. 18.(IV) The Respondent Employer is directed to initiate a fair and transparent process for regularizing the Appellant Workmen within six months from the date of reinstatement, duly considering the fact that they have performed perennial municipal duties akin to permanent posts. In assessing regularization, the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable norms.” 4.7. Placing reliance on the decision in the case of Jaggo and Shripal, Hon’ble Apex Court in the case of Dharam Singh, in Paragraph-13, 14, 15 & 17, 18, 19 & 20 has held as follows: Page 6 of 11 // 7 // that 13. As we have observed in both Jaggo (Supra) and (Supra), outsourcing cannot become a Shripal convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission’s further the appellants are not “full-time” contention employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State’s refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals. 14. The learned Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25.11.2003. However, that view overlooks that the writ petition squarely challenged the 11.11.1999 refusal as the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the respondents. In such circumstances, we believe that the High Court was obliged to examine the legality of the State’s stance in refusing sanction, whether in 1999 or upon reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the dismissal without engaging with the principal challenge or the intervening material. The approach of both the Courts, in reducing the dispute to a mechanical enquiry about “rules” and “vacancy” while ignoring the core question of arbitrariness in the State’s refusal to sanction posts despite perennial need and long service, cannot be sustained. dated State’s refusals 11.11.1999 15. Therefore, in view of the foregoing observations, the impugned order of the High Court cannot be sustained. and The 25.11.2003,in so far as they concern the Commission’s proposals for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed. xxx xxx xxx 17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public Page 7 of 11 // 8 // administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines. 18. Moreover, it must necessarily be noted that “ad- hocism” thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is an institutional discipline that should inform every decision affecting those who keep public offices running. 19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions: i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For the the State and successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts (Driver or in equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 regularization /retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall the corresponding cadres, Class-III this purpose, date until the of to Page 8 of 11 // 9 // carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgment. iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgement. v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgement. 20. We have framed these directions comprehensively because, case after case, orders of this Court in such matters have been met with fresh technicalities, rolling “reconsiderations,” and administrative drift which further prolongs the insecurity for those who have already laboured for years on daily wages. Therefore, we have learned that Justice in such cases cannot rest on simpliciter directions, but it demands imposition of clear duties, fixed timelines, and verifiable compliance .As a constitutional employer, the State is held to a higher standard and therefore it must organise its perennial workers on a sanctioned footing, create a budget for lawful engagement, and implement judicial directions in letter and spirit. Delay to follow these obligations is not mere negligence but rather it is a conscious method of denial that erodes livelihoods and dignity for these workers. The operative scheme we have set here comprising of creation of supernumerary posts, full regularization, subsequent financial benefits, and a sworn affidavit of compliance, is therefore a pathway designed to convert rights into outcomes and to reaffirm that fairness in engagement and transparency in administration are not matters of grace, but obligations under Articles 14, 16 and 21 of the Constitution of India. 5. Learned Addl. Standing Counsel for the State on the other hand contended that Petitioner was never Page 9 of 11 // 10 // engaged on daily wages by facing any recruitment process and no such document has been enclosed to the writ petition showing such engagement of the Petitioner. 5.1. It is however contended that basing on the order of engagement issued under Annexure-1, Petitioner is continuing on daily wages basis and in terms of the impugned order, he is getting the minimum of the pay scale applicable to the post of Peon. 5.2. It is contended that since Petitioner was never engaged against any sanctioned post nor he faced due recruitment process, the impugned order has been rightly passed and it requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was engaged as a Peon on daily wages basis w.e.f.20.06.2009 vide order issued under Annexure-1. On the face such long continuance on daily wages basis, when his services was not regularized, he approached this Court by filing W.P.(C) No.25548 of 2020. 6.1. This Court vide order dtd.03.12.2020 when directed Opposite Party No.3 to consider the grievance of the Petitioner with regard to regularization of his services, the same though was rejected vide the Page 10 of 11 // 11 // impugned order dtd.24.09.2021 under Annexure-3, but Petitioner was paid with the minimum of the pay scale prescribed for the post of Peon. 6.2. Taking into account the long continuance of the Petitioner on daily wages basis w.e.f. 20.06.2009 and placing reliance on the decisions as cited (supra), this
Decision
Court while disposing the Writ Petition directs Opposite Party No.3 to take a fresh decision on the Petitioner’s claim to get the benefit of regularization. Opposite Party No.3 is directed to take a lawful decision within a period of two (2) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 8th September, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2025 16:04:40 Page 11 of 11