The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16511 of 2021 An application under Articles 226 & 227 of the Constitution of India Pramod Kumar Padhi & Ors. State of Orissa and another -versus- Petitioners Sameer Kumar Das Opp. Parties S.K.Parhi, A.S.C. CONTC No.7398 of 2022 Pramod Kumar Padhi & Ors. Deoranjan Kumar Singh, I.A.S. and another -versus- Petitioners Sameer Kumar Das Contemnors S.K.Parhi, A.S.C. THE HON’BLE MR. JUSTICE A.K.MOHAPATRA CORAM: Date of Hearing : 17.03.2025 | Date of Judgment : 16.05.2025 A.K. Mohapatra, J. : 1. The present writ petition has been filed by the Petitioners with a prayer to regularize the contractual appointment of the Petitioners according to the Odisha Group-C and Group-D (Contractual Appointment) Rules, 2013, w.e.f. 01.07.2016 along with a further prayer to grant the Petitioners all the consequential service and financial benefits as is due and admissible to them, within a stipulated time. FACTUAL MATRIX OF THE PRESENT CASE: 2. The essential facts of the matter that led to the filing of the present writ petition are as follows; the present Petitioners are all employees engaged in contractual appointment at the Odisha Bhawan, Mumbai, operated by the Home Department, Government of Odisha. Initially, the Government of Odisha, vide letter No.4416 dated 02.02.2010 (reproduced under Annexure-1 series to the present writ petition) requested the Principal, Institute of Hotel Management and Catering Technology, VSS Nagar, Bhubaneswar to sponsor suitable persons to be appointed in different posts at the then newly proposed Odisha Bhawan, Mumbai. Following such communication, the names of several candidates were received by the Additional Secretary to Government in the Home Department, who, thereafter issued a letter dated 05.04.2010 (Annexure-2 series) directing the Petitioners, amongst other persons, to be present before the Selection Board. Out of the 35 (thirty five) candidates sponsored by the Institute, 17 (seventeen) candidates appeared before the Selection Committee Page 2 of 41 and, amongst those 17 candidates, 7 (seven) candidates were selected by the Selection Committee in the interview conducted on 20.04.2010 vide Memo No.26267 dated 16.06.2010 (under Annexure-3 to the present writ petition), including the present Petitioner No.1– who was appointed against the post of Receptionist-in charge, the Petitioner No.2 – who was appointed as House Keeping-in-charge and the Petitioner No.3 – who was selected as the waiter. The Petitioners were all appointed on contractual basis on consolidated pay. The joining reports of the Petitioners are also available on record under Annexure-4 series. 3. Initially, the Petitioners were appointed on contractual basis for six months and their appointment has been regularly extended from time to time, as is evident from the documents under Annexure-5 series, by the Home Department and the last order of such extension was passed in favour of the Petitioners on 07.04.2021, wherein their contractual appointment was extended by a period of six months w.e.f. 01.02.2021. At present, it is the grievance of the present Petitioners that despite continuing uninterruptedly in service for more than a decade and having completed six years of service on 01.07.2016, the services of the Petitioners have not yet been regularised as per Page 3 of 41 the provisions of the Odisha Group-C and Group-D (Contractual Appointment) Rules, 2013 (herein referred to as the “2013
Facts
Rules”). Being aggrieved by such conduct of the State-Opposite Parties in not regularising their services, the Petitioners have approached this Court. 4. It is pertinent to mention here that initially, vide order dated 05.07.2021 passed in the present writ petition, a direction was given to the State-Opposite parties to look into the matter and take a decision with respect to the grievance of the Petitioners by keeping in view Annexures-1 & 2, the Odisha Group-C and Group-D (Contractual Appointment) Rules, 2013 and the recommendation made by the Officer on Special Duty vide Annexure-8. Against the aforesaid order, the Opposite Party Nos.1 & 2 filed an appeal bearing W.A. No.919 of 2021 on the ground that they have not been given an opportunity of being heard before passing the aforesaid order dated 05.07.2021. The said writ appeal was disposed of vide order dated 12.09.2022 allowing the Opposite Party Nos.1 & 2 to file ‘para- wise reply’ to the present writ petition. 5.
Legal Reasoning
“53. One aspect needs to be clarified. There may be cases where illegal irregular appointments (not in S.V. Narayanappa appointments) as explained [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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 abovereferred to and in the light of this judgment. the State In Governments and their instrumentalities should take steps to regularise 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 the 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 the Union of India, that context, Page 29 of 41 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 reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 35. Thereafter in State of Karnataka v. M.L. Kesari, reported in (2010) 9 SCC 247, the concept of a ‘one-time measure’, as was directed in Uma Devi’s case (supra), was further explained in paragraphs 9, 10 and 11 as; instrumentality “9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , should each department or each undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, and the one-time instrumentalities did not commence regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from departments several Page 30 of 41 consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , will not lose their right to be considered for regularisation, merely because the one- time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , are so considered. 11. The object behind the said direction in para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was rendered, Page 31 of 41 is to that ensure Second are considered for regularisation in view of their long the service. departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] or that such exercise was undertaken only in few, will not disentitle such regard employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] as a one-time measure.” limited to a 36. Similarly, in Narendra Kumar Tiwari v. State of Jharkhand, reported in (2018) 8 SCC 238, the position of law regarding regularization in light of the judgement in Uma Devi’s case (supra) was further clarified as follows; “5. The decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily-wage Page 32 of 41 irregular or from making workers and continuing with them indefinitely. In fact, in para 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would illegal cease and desist appointments and instead make appointments on a regular basis. … 7. The purpose and intent of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] 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) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly they were appointed employees on 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 (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] sought to avoid. 8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State the ground that Page 33 of 41 of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench. … 10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc.” 37. Finally, in Jaggo v. Union of India, reported in 2024 SCC OnLine SC 3826, the Hon’ble Supreme Court has taken into consideration the long period of continuous service of the Petitioners, which was analogous to the duties performed by regular employees, while validating their claims for regularization of their services. In doing so, the Hon’ble Supreme Court has also paid heed to the fact that despite the label of contractual/ part-time workers the petitioners performed essential jobs satisfactorily and received regular contract extensions. The relevant paragraphs are quoted hereinbelow; Page 34 of 41 to their labelling “10. Having given careful consideration the submissions advanced and the material on record, we find that the appellants' long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route. … 12. Despite being labelled as “part-time workers,” the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants' tenure, underscoring the indispensable nature of their work. 13. The claim by the respondents that these were not regular posts lacks merit, as the nature of the work performed by the appellants was perennial and fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same tasks to termination private agencies after demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional.” the appellants' Page 35 of 41 38. In fact, the Hon’ble Supreme Court, in Jaggo’s case (supra), has also reiterated and clarified the spirit of Uma Devi’s (supra) judgement as such; “20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly “irregular,” and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or fair temporary regularization.” continuous, and unblemished demanding scenario into a 39. Recently, in Vinod Kumar v. Union of India reported in (2024) 1 SCR 1230, the Hon’ble Apex Court had held that mere procedural formalities cannot stand in the way of regularizing the service of an employee whose appointment was termed “temporary” but who has rendered services akin to that of a regular employee, over a substantial period of time, in the capacity of a regular employee. It has been observed in the relevant paragraphs (i.e. para 6 & 7) that; Page 36 of 41 “6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). 7. The judgment in the case Uma Devi (supra) also distinguished between “irregular” and “illegal” appointments underscoring importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case…” involving written the 40. Therefore, as clearly gathered from the aforesaid decisions, it must be borne in mind that the decision in Uma Devi’s case (supra), later clarified in the decisions in Narendra Nath Tiwari’s case (supra) and Jaggo’s case (supra), was not intended to penalize employees that have rendered service for a long period of time thereby fulfilling certain ongoing and necessary functions of the State or its instrumentalities. Instead, the said judgment sought to prevent backdoor entries and illegal Page 37 of 41 appointments that circumvent constitutional requirements. However, the commendable objective underlying the judgment in Uma Devi’s case (supra) is being distorted and undermined when institutions invoke its dicta to summarily dismiss the claims of employees, even in instances where the appointments in question are not illegal but merely suffer from non- compliance with procedural requirements. It is regrettable that even though ‘temporary engagement’ is meant to address short- term needs of institutions, temporary/contractual employment are increasingly becoming a mechanism to evade long-term obligations of the employer. Therefore, in cases where appointments were not illegal, but may have been irregular, and where employees have performed their duties continuously for an extended period “against the backdrop of sanctioned functions” (see paragraph 20 of the judgement in Jaggo), it becomes essential to ensure a just and compassionate approach is adopted by the empoloyer so far as the issue of regularization of services of such employees are concerned. When such employees have rendered long, consistent, and untainted service in roles/ jobs that are fundamentally required to be performed on a regular basis, the nature of their employment can, over the Page 38 of 41 time, evolve from being ad-hoc or part-time or temporary into one strongly warranting equitable regularization. 41. As such, it is imperative that this Court, while adjudicating the issue at hand, exercises ample caution so as to refrain from placing unnecessary reliance on the initial label of ‘contractual appointment’ affixed to the Petitioners. It is the duty of this court to look beyond superficial labels and consider the ground realities of the nature of employment of the Petitioners, as borne out from the record, i.e. the continuous, unblemished and long-term service rendered by the Petitioners and the absence of any illegalities in their initial appointment, more so, keeping in view the commitment of the constitutional courts to the cause of humanity and to ensure that the poor, hapless and lowly paid workers do not suffer in the hand of the employer and are not exploited by such employer. Therefore, refusal of regularization of service of the Petitioners merely on the ground that their initial / original term of engagement does not specifically state so, would be contrary to the principles of fairness and equity. Page 39 of 41 CONCLUSION 42. In view of the aforesaid analysis, taking into consideration the long period of continuous and unblemished service of more than a decade rendered by the Petitioners and further taking into consideration the nature of work performed by the Petitioners at the establishment as well as the recommendations made in favour of the Petitioners for regularization of their services, and keeping in view the judgements discussed hereinabove, this Court deems while allowing the present writ petition directs the State-Opposite Parties to regularize the service of the Petitioners against available vacant posts from the date such posts were created by the Govt. of Odisha with all consequential service and financial benefits as would be due and admissible within a period of eight weeks from the date of communication of a certified copy of this judgement. Accordingly, the Petitioners are directed to be reinstated in service forthwith in the event they are disengaged from service and disburse all pending remuneration and consequential service & financial benefits as is due and admissible to the Petitioners, as expeditiously as possible. Page 40 of 41 43. Accordingly, the Writ Petition stands disposed of.
Arguments
Heard Mr. Sameer Kumar Das, the learned counsel for the Petitioners and Mr.S.K.Parhi, learned A.S.C appearing for Page 4 of 41 the State-Opposite Parties. The contentions advanced by the Petitioners and the State-Opposite Parties, are as follows; CONTENTIONS OF THE PETITIONERS 6. The Learned Counsel for the Petitioners, at the outset, has contended that while the Petitioners were continuing in their contractual posts, the State Government promulgated the Odisha Group-C & Group-D Posts (Contractual Appointment) Rules, 2013 with a view to regularize the service of contractual employees that have been duly appointed by the State Government on the completion of satisfactory service of six years. Learned Counsel for the Petitioners submitted that the Petitioners were duly appointed by the Home Department, Government of Odisha after following the due selection procedure conducted by the Selection Committee, and, after their selection, they have been performing their duties diligently. In fact, considering the satisfactory performances of the Petitioners, the Opposite Party No.2-Head of Establishment of Odisha Bhawan, Mumbai, has recommended the case of the present Petitioners for regularisation w.e.f 01.08.2016, vide his letter dated 17.06.2016 (under Annexure-8 to the present writ petition). To lead further credence to his stance, the Learned Page 5 of 41 Counsel for the Petitioners contended that earlier the Petitioners had filed a grievance petition addressed to the Hon’ble Chief Minister of the State and in pursuance thereof the Home Department has given his e-compliance, dated 08.08.2017, wherein it has been stated that the Finance Department has created three permanent posts and as against which the present petitioners were recommended to be absorbed (Annexure-7 to the writ petition). Therefore, the Learned Counsel for the Petitioners contended that it is clear that not only were there sanctioned posts for the Petitioners, but also they have been recommended for being absorbed into the said posts by the Opposite Party No.2. 7. Next, referring to the the Odisha Group-C & Group-D Posts (Contractual Appointment) Rules, 2013 (i.e. the “2013 Rules”), the Learned Counsel for the Petitioners contended that the aforesaid rules, which were in force at the time of the filing of the present writ petition, posit that persons that have been in contractual service for more than 6 (six) years, after having being appointed by following a proper selection process, shall be eligible for having their services regularised. In the instant case, the Learned Counsel for the Petitioners submitted that not Page 6 of 41 only did the Petitioners complete their initial term of appointment, but also, as per the advertisement dated 02.02.2010 (under Annexure-1) wherein it has been mentioned that the contract of the Petitioners is liable to be extended, the Petitioners have been allowed extension of their contracts owing to their satisfactory performance. As such, the Learned Counsel for the Petitioners contended that the Petitioners completed 6 (six) years of service on 01.07.2016 and have been continuing uninterruptedly in the same post for more than a decade, around 12 years in toto, at this point. 8. Moreover, it was also contended that the posts against which the Petitioners are continuing are clearly substantive posts, and, as such, the Petitioners deserve to have their services regularised in terms of the aforesaid 2013 Rules. Additionally, the Petitioners had earlier approached the concerned authorities through proper channel by filing representations (under Annexure-6 to the present writ petition) for regularisation of their services. Learned counsel for the petitioner submitted that such representations of the Petitioners have been duly forwarded to the competent authorities, however, no action has been taken therein till date. To support his contentions, the Learned Page 7 of 41 Counsel for the Petitioners has once again referred to the copies of the acknowledgement receipt, of their grievance petition, by the Home Department, Odisha, Bhubaneswar and the recommendation letter of the Officers on Special Duty of Odisha Bhawan, Mumbai dated 17.06.2016, under Annexures-7 and 8 respectively. 9. The Learned Counsel for the Petitioners, at this point, directly controverted the stance taken by the State-Opposite Parties in their counter that since the manpower required for Odisha Bhawan, Mumbai is to be managed by outsourcing basis, the regularisation of the service of the Petitioners is not required. Furthermore, in reply to the contention of the State- Opposite Parties that the Petitioners cannot be regularised as per Rule 5(2) of the 2013 Rules since they were not selected by a regular process of recruitment, the learned counsel for the petitioners has drawn the attention of this court to the Government letter No.4416 dated 02.02.2010 wherein a request was made to the Institute to recommend names of suitable candidates and the letter dated 05.04.2010 intimating the Petitioners to appear before the Selection Board (under Annexures 1 and 2 respectively) and contended that the Page 8 of 41 petitioners were duly selected by following a recruitment process that was conducted by the Home Department. 10. Similarly, with respect to the contention by the State- Opposite Parties that there were no sanctioned posts against which the Petitioners can claim their regularisation, the Learned Counsel for the Petitioners referred to the e-grievance receipt under Annexure-7 and contended that it is clear from the aforesaid document that the Finance Department has created 3 permanent posts against which the Petitioners are to be absorbed. Further, referring to the letter dated 12.02.2018 (under Annexure-9 to the present writ petition) by the Special Secretary to the Government addressed to the Principal Accountant General (A&E), the Learned Counsel for the Petitioners has submitted that 4 (four) posts have been created at the Odisha Bhawan, Navi Mumbai in lieu of abolition of 7 (seven) posts of Room Boy. 11. The Learned Counsel for the Petitioners further contended that as per the aforesaid document, the said posts have been created with the concurrence of the Finance Department vide file No.FIN-GSI-CADRE-0004-2016. Therefore, despite the availability of such posts, the State- Page 9 of 41 Opposite Parties have not regularised the services of the Petitioners on the ground that they have been disengaged from service. He further submitted that no disengagement order against the Petitioners has been filed by the State-Opposite Parties. In fact, referring to the order dated 09.11.2022 passed by this court in the present writ petition, the Learned Counsel for the Petitioners contended that in the said order, as an interim measure, it was directed that the Petitioners are not to be disengaged. Therefore, it is undisputed that the Petitioners are continuing in service and, as such, their services ought to be regularised. 12. Further, the learned counsel for the Petitioners asserted that the Petitioners having continued uninterruptedly in their posts have garnered a legitimate expectation to have their services regularised. To support his contention, the Learned Counsel for the Petitioners has placed reliance on the following judgements of the Hon’ble Supreme Court and of this court to underline the law with regard to regularisation of the service of contractual employees; a. State of Haryana and others Vs. Piara Singh and others, reported in AIR 1992 Supreme Court 2130, Page 10 of 41 b. Jaydev Shrichand Danani Vs. State of Gujarat, reported in AIR 1992 Supreme Court 2152, c. Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in AIR 2006 Supreme Court 1806, d. State of Karnataka and Others Vs. M.L. Kesari and Others, reported in (2010) 9 Supreme Court Cases 247, e. Nihal Singh and others Vs. State of Punjab and others, reported in (2013) 14 Supreme Court Cases 65, f. Amarkant Rai Vs. State of Bihar and others, reported in (2015)8 Supreme Court Cases 265, g. Narendra Kumar Tiwari and others Vrs. State of Jharkhand and others, reported in (2018) 8 SCC 238, h. Shripal and Anr. Vs. Nagar Nigam Gaziabad, reported in 2025 SCC OnLine SC 221, i. Jaggo Vs. Union of India and Ors., reported in 2024 SCC OnLine SC 3826, Learned Counsel for the Petitioners has also placed reliance on the following judgements of this Court; a. Bijan Kumar Mohanty & others Vs. Water & Land Management Institute (WALMI) & others, reported in 2015 (I) OLR-347, b. Diilip Kumar Baral Vs. Biju Pattnaik University and Technology (BPUT), represented through the Registrar, Rourkela and another, reported in 2013 (II) OLR-210, Page 11 of 41 c. Basil Lakra Vs. State of Orissa, reported in 2013 (II) OLR-214 d. Managing Committee, Majhipada M.E. School Vs. State of Orissa and others, reported in 1992(I)OLR- 447, e. Dr.Prasana Kumar Mishra Vs. State of Orissa and others, reported in 2016(Supp.-l) OLR-507, f. Rintu @ Narottam Naik Vs. State of Orissa, reported in 2016 (Supp.-I) OLR-517 13. Relying on the aforesaid judgments, the Learned Counsel for the Petitioners contended that the Petitioners have put in more than a decade of service as of yet and non- regularisation of their service, after such long tenure, amounts to exploitation. In the aforesaid context, learned counsel for the Petitioner referred to the latest judgment of the Supreme Court in Jaggo (supra) & Shripal (supra). Moreover, it was contended that once the concerned authorities appointed the Petitioners by following their own selection process, they cannot question the same just to deny regularisation of service of the Petitioners. 14. Furthermore, the Learned Counsel for the Petitioners accosted the caprices of the State-Opposite Parties in not regularising their services by submitting that in the case of many similarly situated persons the State Government has notionally Page 12 of 41 regularised the service of contractual appointees, from the date of their joining in contractual appointment in different posts pursuant to the 2013 Rules. However, the present petitioners, despite their legitimate claim for regularisation, have been left to suffer. Additionally, the Opposite Party No.2, being the very officer who has recommended the regularisation of services of the Petitioners to the Opposite Party No.1, cannot then question his own actions in the counter affidavit and, as such, is estopped from raising any objection to his own proposal. 15. In fact, the Learned Counsel for the Petitioners has referred to the letter dated 03.03.2021 of the G.A.&P.G. Department (under Annexure-H/1) and argued that since the Opposite Party No.2, being the responsible officer of the State Government, had earlier recommended the names of the Petitioners for regularisation of their service, such action of the Opposite Party No.2 cannot be simply thrown away by the aforesaid GA&PG Department letter. 16. Moreover, the Learned Counsel for the Petitioners has also submitted that the posts at Odisha Bhawan, Mumbai, with respect to the present Petitioners, cannot be said to be temporary since the said establishment, from the date of its opening, has Page 13 of 41 now become a permanent establishment of the State Government and recently the Hon’ble Chief minister of the State has laid a foundation stone for the extension of the establishment. Therefore, it can very well be inferred that there is a long-term need of the services rendered by the Petitioners. As such, even if the posts were not created by an order, but a due procedure was followed while appointing the Petitioners and they have been continuing for over a decade, ergo, the Learned Counsel for the Petitioners contended that the Petitioners are liable to have their services regularised from the initial date of their joining, i.e. 01.07.2010. 17. In view of the aforesaid contentions, the Learned Counsel for the Petitioners contended that the present Petitioners have been discharging their duties uninterruptedly, with an unblemished record, in the aforesaid substantive posts for over a decade and as such, their services ought to have been regularised. However, for the latches on the part of the State- Opposite parties, the Petitioners have had to suffer. Hence, the Learned Counsel for the Petitioners contended that the State- Opposite Parties be directed to regularize the contractual employment of the Petitioners under the 2013 Rules, w.e.f Page 14 of 41 01.07.2016 and to further direct the State-Opposite Parties to extend all the consequential service and financial benefits in favour of the Petitioners. CONTENTIONS OF THE STATE-OPPOSITE PARTIES 18. Learned Counsel for the State-Opposite Parties at the outset have naturally opposed the stand taken by the Petitioners and contended that the Petitioners are presently not continuing in service and they have been disengaged from 27.06.2022. It was stated that the Petitioners were actually engaged temporarily at Odisha Bhawan, Mumbai for six months, vide Home Department Office Order No.26265 dated 16.06.2010. He further contended that first the willingness of the Petitioners was received (under Annexure-E/1) and then they were engaged in various types of jobs different from their initial engagement and their engagement was later extended through extension orders (under Annexure-F/1 series to the Counter Affidavit) 19. Thereafter, the Learned Counsel for the State-Opposite Parties referred to the 2013 Rules and contended that persons appointed on contractual basis prior to the commencement of the 2013 Rules and below 45 years of age, shall be allowed to participate in the recruitment process under Rule-5 of the Page 15 of 41 aforesaid Rules for any Group C or Group D posts, provided they satisfy all other eligibility criteria for such post as laid down in the relevant recruitment rules. Only then can such persons be allowed relaxation of upper age limit for entry into Government service. 20. Next, relying on the 2013 Rules again, specifically Rules-3, 4 and 8, the Learned Counsel for the State-Opposite Parties submitted that the 2013 Rules do not allow for regularisation of contractual service of the Petitioners. Thereafter, specifically referring to Rules-4 and 8, the Learned Counsel for the State-Opposite Parties contended that on a bare perusal of the aforesaid rules it is clear that the present Petitioners fall under the categories enshrined under Rules-4 and 8. Therefore, as per the aforesaid rules, the Petitioners are eligible to get the benefit under Rule-8 i.e. relaxation of upper age-limit for entry into government service and one percent of extra marks on the total marks of the examination for each completed year of continuous service. However, the Learned Counsel for the State-Opposite Parties contended that the petitioners cannot seek regularisation unless they are appointed in accordance with the provisions under Rule-5(2). Since, this is Page 16 of 41 not the scenario in the present case, the claim of the Petitioners for regularisation of their service is not permissible in law. 21. Addressing the contentions of the learned counsel for the Petitioners with regard to the creation of substantive posts, the Learned Counsel for the State-Opposite Parties contended that no posts were actually created during the inaugural period of Odisha Bhawan, Mumbai. Instead, the Petitioners were engaged on temporary basis. He further contended that the terms of the initial engagement of the Petitioners clearly indicates that the Petitioners were engaged subject to submission of an undertaking to the effect that they shall not claim for any regular scale of pay and their engagement does not confer any right on the petitioners to lay any claim for regular appointment in the future. Furthermore, the aforesaid engagement of the Petitioners was also liable to be terminated automatically after expiry of the period of engagement. 22. To lend further weight to his submissions, the Learned Counsel for the State-Opposite Parties referred to the GA&PG Department Letter No.7210(e) dated 03.03.2021 (under Annexure H/1 to the present writ petition) and contended that as per Note-1(a) of the said letter, the appointments which have Page 17 of 41 been made against non-sanctioned posts are illegal appointments and, as such, the service of the Petitioners cannot be regularised. The learned counsel for the State-Opposite Parties, reiterated that no posts were actually created at the time of appointment of the Petitioners and the Petitioners were engaged temporarily at the relevant time. As such, it was contended that the Petitioners are not eligible to get the benefit of regularisation of their services. 23. Next, addressing the contention of the Petitioners with regard to the creation of permanent posts by the Finance Department, as per the e-grievance petition vide No.OR114/E/2017/00018 (under Annexure-7), the Learned Counsel for the State-Opposite Parties contended that no permanent posts were actually created in 2017 for absorption of the Petitioners. In this context, the learned counsel for the State- Opposite Parties also submitted that no concurrence has been given by the Finance Department for the creation of posts in the year 2016. In fact, later on, vide Home Department letter No.6097 dated 12.02.2018, four posts were created in lieu of abolition of seven posts of “Room Boys” and the said posts are Page 18 of 41 required to be filled up through the relevant recruitment rules and by following the due process. 24. In view of the aforesaid contentions, the Learned Counsel for the State-Opposite Parties submitted that the Petitioners’ claim for regularization lacks substance and not supported by law, and as such, the present writ petition is devoid of merit and is liable to be dismissed. ANALYSIS OF THE COURT 25. Heard learned counsel for the petitioner and learned counsel for the State. Perused the writ application as well as documents annexed thereto. 26. After a careful analysis of the factual background of the present case and after weighing the rival submissions of the counsel for both parties, this court is of the view that the primary issue involved in the present writ petition is with respect to the status of the service of the Petitioners. The Petitioners, referring to their long and continuous service of more than a decade, claim regularization under the 2013 Rules and on the basis of a catena of judgements of this Court and the Hon’ble Supreme Court. The State-Opposite Parties have naturally denied their claims on the ground that the Petitioners, Page 19 of 41 being contractually employed, are bound by their contract of appointment which does not vest any right of regularization on them, and the 2013 Rules relied on by the Petitioners does not accord the benefit of regularization of the service to the Petitioners. Therefore, to adjudicate the matter at hand, this Court is first required to examine the applicability of the 2013 Rules to the case of the Petitioners. 27. On perusal of the 2013 Rules, it appears that the same came into effect in the year 2013, i.e. much after the initial appointment of the Petitioners in the year 01.07.2010. The aforesaid rules stipulate that from the date of their commencement there shall be no ad hoc appointment in Group- C and Group-D posts under the State Government. Further, as per Rule-3, it appears that the said rules are applicable to Group- C and Group-D posts that have been filled via direct recruitment and to contractual appointments made under Rule-4 (from the date of appointment), provided the appointment has been made under Rule-5. The said Rules also explicitly exclude (under sub- rule-3 to Rule-3) from their purview Group-C and Group-D posts pertaining to functions like that of “Watch & Ward, Sweeping and Cleaning, Gardening etc.” and the manpower Page 20 of 41 required to perform such functions shall be managed on outsourcing basis. Next, Rule-4 of the aforesaid rules divide personnel appointed contractually prior to the commencement of the 2013 rules into two categories. The Petitioners, as it appears, fall under category-II of Rule-4. At this point, it is pertinent to mention that vide G.A.&P.G. notification dated 16th October 2022, the State Government has promulgated the ‘Odisha Group “B”, “C” and Group “D” posts (Repeal and Special Provisions) Rules, 2022’ to repeal the ‘Odisha Group-B posts (Contractual Appointment) Rules, 2013’ and the ‘Odisha Group “C” and Group “D” posts (contractual Appointment) Rules, 2013’. For better appreciation, the relevant rules of the 2013 Rules are extracted hereinbelow; “3. Applicability: (1) These rules shall apply to the Group “C” and Group “D” posts, which are filled up by way of direct recruitment; Provided that the State Government may by notification exclude any post from the purview of these rules (2) They shall also apply to the categories of contractual appointments made under rule 4 from the date of contractual appointment, if any, made under rule 5. (3)These rules shall not apply to the Group ‘C’ and Group ‘D’ posts for services and functions like Watch & Ward, Sweeping and Cleaning, Gardening etc. Manpower required for such services/ functions shall be managed by outsourcing basis. Page 21 of 41 (4)These rules shall also not apply to contractual appointments made under- (a) Temporary Plan Schemes (including those under Centrally Sponsored Plan Scheme, Externally Aided Projects); (b) Temporary Establishments; and (c)Tenure Based Posts: Provided that persons appointed on contractual basis under these schemes prior to the commencement of these rules, who are below 45 years shall be allowed to participate in the recruitment process under rule 5 for any Group C or Group D posts, if they satisfy all other eligibility criteria for the such post as laid down in the relevant recruitment rules and shall be allowed relaxation of upper age limit for entry into Government service. NOTE: Persons appointed under sub-rule (2) and proviso to sub-rule (4) shall get the benefit of these rules only after they were recruited and appointed to any post under rule 5. the purpose of 4. Categorisation of existing Contractual Employees: For these rules all contractual appointments made prior to the commencement of these rules shall be classified into two categories; namely:- (a) Category I: Contractual appointments/ engagements made against contractual posts created with the concurrence of Finance Department without following the Odisha the recruitment procedure Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and thereunder and rules regulating the rules made recruitment for the regular posts. (b) Category II: Contractual Engagements made through manpower service provider agencies with concurrence of Finance Department. including Page 22 of 41 5. Recruitment Procedure: (1) Recruitment to the posts shall be made on the basis of the provisions of the relevant recruitment rules or executive instructions, as the case may be in force. (2) Notwithstanding anything contained in the relevant recruitment rules or executive instructions, as the case may be in force all appointments made pursuant to sub- rule(1) shall, from the date of commencement of these rules, be on contract basis … … 8. Special Provision for different Categories of existing Contractual Employees: (a) The contractual employees belonging to Category-I and the persons provided by the manpower service provider agencies under Category-II. who shall be less than 45 years of age and shall have completed at least one year of continuous service, in case they apply for Recruitment under sub-rule(1) of rule 5 for any Group C and Group D posts, shall be allowed relaxation of upper age limit for entry into Government service: provided they satisfy all other eligibility criteria for the post as laid down in the relevant recruitment rules. b) They shall be allowed one per cent extra marks on the total marks of the examination for each completed year of continuous service subject to a maximum of fifteen per cent, which shall be added to the marks secured by them for deciding the merit position. … … 10. Conditions of Service on Regular appointment; (1) Regular Appointments: On the date of satisfactory completion of six years of contractual service under sub- rule (1) of rule 9, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority. Page 23 of 41 (2) Pay and other benefits: On regular appointment they shall be entitled to draw the time scale of pay plus Grade Pay with DA and other allowances as admissible in the corresponding Pay Band. (3) Other conditions of service: (a) The other conditions of service shall be such as has been provided in the relevant recruitment rules. (b) The conditions of service in regard to matters not covered by sub-rule (2) and clause (a) of this sub- rule shall be the same as are or as may from time to time be prescribed by the State Government.” 28. From the aforesaid analysis, particularly keeping in view Rules-3, 4, 5, 8 and 9, it is clear that the benefit of regularization of service under the aforesaid 2013 Rules, in favour of persons appointed prior to the commencement of the 2013 Rules, can only be granted if they have been appointed under Rule-5. Since the appointment of the present Petitioners was not done under the said Rule-5(2), the benefit of regularization of service as claimed for by the petitioners under the 2013 Rules cannot be granted to them. 29. Next, since the issue at hand is with regard to the regularization of the service of the Petitioners, this court is required to undertake an analysis of the nature of service of the Petitioners. Firstly, with regard to the duration of service of the Petitioners, it is an admitted fact on record that the Petitioners Page 24 of 41 have joined in service on 01.07.2010 and the last order of extension, for a period of 6 (six) months, was passed in favour of the petitioners on 01.02.2021. This means, at the very least, the Petitioners were in service till 01.08.2021. Besides, the State-Opposite Parties, in their written submissions as well as their Reply, dated 28.02.2025, to Additional Affidavit by the Petitioners, have admitted that the Petitioners were in service till 27.06.2022, where after they have been disengaged. However, no order of disengagement issued in favour of the Petitioners can be found on record. Therefore, it can be safely ascertained that admittedly the Petitioners have imparted a service of at least 11 years and 11 months. Nevertheless, it is well established that the Petitioners have indeed served continuously for more than a decade, against the posts they were initially appointed to, without any intervention of courts or tribunals. 30. Furthermore, with regard to the initial appointment of the Petitioners, it cannot be said that the same is vitiated by illegalities since there was a clear requisition from the Home Department of the State Government to the Institute to sponsor suitable personnel for appointment. Following such recommendation/sponsor, several candidates including the Page 25 of 41 Petitioner appeared before a Selection Committee who then finalized the list of seven candidates including the Petitioner who were given appointment at Odisha Bhawan, Mumbai. Neither the selection procedure nor the constitution of Selection Committee has been challenged by the State-Opposite Parties. The qualification possessed by the Petitioners has also not been questioned by the State-Opposite Parties. As such, it would be apposite to conclude that the Petitioners were initially duly appointed against their contractual posts and that their initial appointment does not, in any way, seem illegal. 31. To supplement the aforesaid reasoning, reference may be had to the decision of the Hon’ble Supreme Court in State of Jammu and Kashmir v. District Bar Association, Bandipora, reported in (2017) 3 SCC 410, wherein a distinction has been made with regard to ‘irregular’ and ‘illegal’ engagement, referring to the exception carved out in Umadevi’s judgement (reported in (2006) 4 SCC 1). In paragraph 12, of the said judgment it has been stated as follows: “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 Page 26 of 41 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 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.” 32. Now, with regard to the nature of employment, i.e. the nature of work performed by the Petitioners, it is borne from the record that the Petitioners were appointed as Receptionist-in- charge, House Keeping-in-charge and Waiter respectively. It is clear that the duties of the aforesaid nature ascribed to the present Petitioners form an essential aspect of the day-to-day operational functionality of the Odisha Bhawan premises. Moreover, the work assigned to the petitioners, which is essential in nature, was being performed by them daily on a continuous basis without any break whatsoever over a prolonged period of more than a decade. Additionally, their engagement, post their initial appointment, was not sporadic, instead, it was recurrent/regular and akin to the duties ascribed Page 27 of 41 to regularly sanctioned posts. Therefore, it is clear that the work performed by the Petitioners is perennial in nature, which is underlined by the fact that the premises of Odisha Bhawan, Mumbai has recently received an extension. 33. Moreover, there have been no complaints or grievances against the Petitioners, during the period of their service, pertaining to their performance. On the contrary, their services have been extended regularly (as evidenced by the documents under Annexure-F/1 series) over the years and they have received recommendation (under Annexure-8) by the Officer on Special Duty for regularization of their services. Also, in reply to the e-grievance petition of the Petitioners (under Annexure-7 to the writ petition), it has been stated that the Finance Department has created 3 permanent posts against which the Petitioners “will be recommended to be absorbed”. Furthermore, as to the presence of sanctioned vacancies against which the Petitioners’ claim can be accommodated, it is revealed from the record, specifically, the Home Department letter No.6097 dated 12.02.2018 (under Annexure-9), that admittedly 4 sanctioned posts have been specifically created by abolishing seven ‘Room Boy’ posts. Page 28 of 41 34. In adjudication of the matter at hand, it is pertinent to mention here that the law with regard to regularization of service of contractual employees is no more res integra and it has now been well settled in view of a catena of decisions by the Hon’ble Supreme Court. In Secretary, State of Karnataka v. Uma Devi, reported in (2006) 4 SCC 1, the Hon’ble Apex Court has made the following observations;
Decision
However, there shall be no order as to costs. 44. In view of the aforesaid judgement, the contempt application bearing CONTC No.7398 of 2022 is disposed of with liberty to the Petitioners to revive the contempt application in the event the cause of action still subsists. 45. In view of the aforesaid judgement, the interim application bearing I.A. No.16011 of 2022 stands disposed of. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 16th May, 2025/ Anil/ Jr. Steno Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Jul-2025 15:37:18 Page 41 of 41