Orissa High Court
Ashis Kumar Chand vs State Of Odisha And Others .... Opposite ... on 5 August, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10425 of 2021
In the matter of an application under Articles 226 and 227
of the Constitution of India.
..................
Ashis Kumar Chand .... Petitioner
-versus-
State of Odisha and Others .... Opposite Parties
For Petitioner : Mr. K.C. Sahu, Advocate
For Opp. Parties : Mr. S.K. Jee, AGA
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:05.08.2025 and Date of Judgment:05.08.2025
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Biraja Prasanna Satapathy, J.
1. Heard Mr. K.C. Sahu, learned counsel for the petitioner and Mr. S.K. Jee, learned Addl. Govt. Advocate for the State.
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2. The present Writ Petition has been filed inter alia challenging order dated 09.03.2021 so passed by O.P. No.1 under Annexure-19. Vide the said order, claim of the petitioner to regularize his services as against the post of Peon in the establishment of O.P. No.3 was rejected.
3. Learned counsel for the petitioner contended that petitioner was initially engaged as a Peon on adhoc basis vide order issued by O.P. No.3 on 17.07.1998 under Annexure-1. However, while continuing as such where he was dis-engaged from his post vide order dated 17.08.2000 under Annexure-3, the same was challenged by the petitioner by filing O.A. No.1901 of 2000.
3.1. The Tribunal though originally disposed of the matter vide order dated 24.10.2000, but order dated 24.10.2000 was modified vide order dated 19.12.2001, on the following term:-
"If the post in question has not been filled up on regular basis till now, then the applicant may be allowed to continue in it on ad hoc basis till he is Page 2 of 20 // 3 // regularly appointed subject to the following conditions:
(i) Availability of a vacancy and necessity for manning it.
(ii) The vacancy is not required for implementation of any earlier order of the High Court or this Tribunal or for extending rehabilitation assistance in a deserving case.
(iii) If the post is earmarked for a reserved category, then his continuance shall be in spells of 44 days."
3.2. Learned counsel for the petitioner contended that in terms of the order passed by the Tribunal under Annexure-6, petitioner was re-appointed as a Peon on adhoc basis in the office of O.P. No.3 vide order dated 20.02.2002 under Annexure-7. 3.3. It is contended that taking into account such continuance of the petitioner on adhoc basis, office of O.P. No.3 vide letter dated 11.11.2013 under Annexure-10, recommended the claim of the petitioner along with others who are also continuing on adhoc basis as against the post of Attendant and Sweeper for their regularization to O.P. No.2. However, on the face of such recommendation made under Annexure-10, petitioner was never regularized. However, basing on the order passed by the Tribunal Page 3 of 20 // 4 // under Annexures-12, one such recommended employee namely Manoj Kumar Swain, applicant in O.A. No.1557(C) of 2013 was regularized as against the post of Sweeper.
3.4. Not only that pursuant to the order passed by this Court in W.P.(C) No.10256 of 2020 wherein direction was issued to comply the order passed on 16.04.2012 in O.A. No.1247(C) of 2001 under Annexure-11, one Manoj Kumar Swain whose name is also reflected in Annexure-10, was regularized vide order dated 11.05.2021 under Annexure-20. It is contended that subsequent to his re-engagement vide order dated 20.02.2002 under Annexure-7, petitioner is continuing on adhoc basis till date without any further break in service. 3.5. However, on the ground that petitioner's initial appointment is on adhoc basis and such adhoc appointment has not been made by following due recruitment process, claim of the petitioner was rejected vide the impugned order dated 09.03.2021 Page 4 of 20 // 5 // pursuant to the order passed by this Court in W.P.(C) No.37892 of 2020 under Annexure-19. 3.6. Learned counsel for the petitioner contended that taking into account long continuance of the petitioner on adhoc basis after his re-engagement vide order dated 20.02.2002 to till date, petitioner has accrued a right of regularization, in view of the decisions of the Hon'ble Apex Court in the case of 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 Vrs. State of Punjab, 2013 (14) SCC
65. 3.7. Hon'ble Apex Court in the case of Uma Devi in Para- 44 has held as follows:-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal 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 Page 5 of 20 // 6 // 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 further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
3.8. Similarly Hon'ble Apex Court in the case of M.L. Keshari in Para- 8 and 13 has held as follows:-
"8. Umadevi (3) casts a duty upon 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 (3) directed that such one- time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006).
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 Page 6 of 20 // 7 // 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' 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."
3.9. In the case of Nihal Singh in Para-35 to 38, Apex Court has held as follows:-
"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with 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 tin 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.
21. In the first instances, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent 1 (Union of India), that on account of the Constitution (61" Amendment) Act reducing the voting age and the Constitution (64th Amendment) and (65 Amendment) Bills relating to election to the Panchayats and Nagar Paliks, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts notice. As has been pointed out by Respondent 2, the work relating to revision of electoral roll on account of the Page 7 of 20 // 8 // reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati. Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sahba would be completed by August in the whole of the country except Assam. Further the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was to appoint the petitioner and the other Election Commissioner on 16.01.1989. Admittedly, further the view of the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day i.e, 16-10-1989.
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 finance 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 on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand 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.
37. We are of the opinion that neither the Governmnet of Punjab nor these public sector banks can continue such a Page 8 of 20 // 9 // practice consistent with their obligations to function in accordance with the Constitution. Umadevi (3) judgement cannot became a licence for exploitation by the State and its instrumentalities.
38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeal are accordingly allowed. The judgements under appeal are set aside."
3.10. In the case of Amarkanti Rai, Hon'ble Apex Court in Para-8, 9, 11 to 14 has held as follows:-
"8. Insofar as contention of the respondent that the appointment of the appellant was made by the Principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as night guard was done out of necessity and concern for the College. As noticed earlier, the Principal of the College vide letters dated 11-3-1988, 7-1-1993, 8-1- 2002 and 12-7-2004 recommended the case of the appellant for regularisation on the post of night guard and the University was thus well acquainted with the appointment of the appellant by the then Principal even though the Principal was not a competent authority to make such appointments and thus the appointment of the appellant and other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.ef. 3-1-2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, the University never raised the issue Page 9 of 20 // 10 // that the appointment of the appellant by the Principal is ultra vires the rules of the BSU Act. Having regard to the various communications between the Principal and the University and also the educational authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular.
9. The Human Resources Development, Department of Bihar Government, vide its Letter dated 11-7-1989 intimated to the Registrar of all the Colleges that as per the settlement dated 26-4-1989 held between Bihar State University and College Employees' Federation and the Government it was agreed that the services of the employees working in the educational institutions on the basis of prescribed staffing pattern are to be regularised. As per sanctioned staffing partien, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10-5-1991 issued by the Human Resources Development Department provides that employee working up to 10-5-1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of the Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked up to 10-5-1986. In our considered view, the High Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government and in the light of the circular, the appellant is eligible for consideration for regularisation.
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11. Elaboration upon the principles laid down in Umadevi (3) Case and explaining the difference between irregular and illegal appointments in State of Karnataka Vs. M.L Kesari, this Court held as under (ML Kesari case SSC p 250, para 7) 7. It is evident from the above that there is an exception to the general principles against 'regularisation enunciated in Umadevi (3). if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal.
In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possesses the prescribed minimum qualifications, the appointments will be considered to be illegal., But where the persons employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
12. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of holding as under: (Nihal Singh Case, SCC pp. 79-80, paras- 35-36) "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to Page 11 of 20 // 12 // 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 extracting work from persons such as the appellants herein for decades together itself would he 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 on a par with the police officers of similar rank employed by the State results in 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
13. In our view, the exception carved out in para 53 of Umadevi (3)3 is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of Page 12 of 20 // 13 // similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1.-1-2010.
14. Considering the facts and circumstances of the case that the appellant has served the University for more than
29. years of the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.ef. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar)."
3.11. A further contention was also raised that Hon'ble Apex Court in the meantime in the case of Jaggo Vrs. Union of India and Others and Shripal and Anr. vrs. Nagar Nigam, Ghaziabad, has taken a view that persons engaged in DLR/NMR basis for a pretty long period are entitled to get the benefit of regularization. View expressed by the Page 13 of 20 // 14 // Hon'ble Apex Court in the case of Jaggo in Par-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 justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.
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 large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, Page 14 of 20 // 15 // 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.
25. It is a disconcerting reality that temporary employees, particularly in government institutions, 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, 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.
• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
• 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 Page 15 of 20 // 16 // 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 in cases of illness, retirement, or unforeseen circumstances.
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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."
3.12. Hon'ble Apex Court in the case of Shripal in Par-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 or contractual engagements in circumstances where the work is permanent in nature.
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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."
3.13. It is accordingly contended that the ground on which claim of the petitioner has been rejected is not sustainable in the eye of law and petitioner is entitled to get the benefit of regularization.
4. Learned Addl. Govt. Advocate on the other hand placing reliance on the stand taken in the counter so filed, contended that since the initial appointment of the petitioner on adhoc basis has been made without following due recruitment procedure, petitioner in Page 17 of 20 // 18 // terms of the decision in the case of Uma Devi as cited (supra) is not eligible to get the benefit of regularization. Since petitioner has been appointed on adhoc basis without facing any recruitment process, said appointment does not confer any right on the petitioner to get the benefit as prayed for. 4.1. It is also contended that persons regularized in terms of the order passed by the Tribunal were continuing as Sweepers on adhoc basis, petitioner stands in a different footing, having been engaged as a Peon. It is also contended that since petitioner is continuing on adhoc basis all through, he is not eligible to get the benefit of regularization.
5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner was appointed on adhoc basis as a peon in the office of O.P. No.3 vide order dated 17.07.1998 under Annexure-1. Subsequently, when the petitioner was dis-engaged vide order dated 17.08.2000, the same was assailed by the petitioner Page 18 of 20 // 19 // by filing O.A. No.1901 of 2000. In terms of order dated 19.05.2001, so passed in M.P. No.1381/2000 under Annexure-6, petitioner was re-appointed vide order dated 20.02.2002 under Annexure-7 on adhoc basis.
5.1. It is not disputed that petitioner since 20.02.2002 to till date is continuing on adhoc basis as a peon. This Court also finds that taking into account such long continuance of the petitioner on adhoc basis, O.P. No.3 vide his letter dated 11.11.2013 under Annexure-10 recommended for regularization of the petitioner's service as against the post of Peon along with other persons continuing as against the post of Attendant and Sweeper. 5.2. As found from the record, such adhoc sweepers namely Bikram Bihari Nayak and Manoj Kumar Swain as reflected in Annexure-10, have got the benefit of regularization in the meantime in terms of the order passed by the Tribunal and further order passed by this Court.
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// 20 // 5.3. Since it is not disputed that petitioner is continuing on adhoc basis against the post of Peon vide order dated 20.02.2002 under Annexure-7, this Court in view of the decisions as cited (supra) and the benefit of regularization extended in favour of adhoc sweepers, is of the view that petitioner is eligible to get the benefit of regularization. Accordingly, this Court is inclined to quash order dated 09.03.2021 so passed by the Govt.-O.P. No.1 under Annexure-19. While quashing the said order, this Court directs O.P. No.1 to pass appropriate order by regularizing the service of the petitioner as against the post of Peon within a period of 2 (two) months from the date of receipt of this order.
6. The Writ Petition accordingly stands disposed of.
(Biraja Prasanna Satapathy) Judge Signature Not Verified Orissa High Court, Cuttack Dated the 5th August, 2025/Basudev Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Aug-2025 13:19:38 Page 20 of 20