State Of Odisha And Another vs Patitapaban Dutta Dash And Others on 12 April, 2023

[Cites 13, Cited by 12]

Orissa High Court

State Of Odisha And Another vs Patitapaban Dutta Dash And Others on 12 April, 2023

1. These writ appeals by the State of Odisha are directed against the impugned judgment dated 9th September, 2021 of learned Single Judge allowing the writ petitions filed by the Respondents and directing that their services as Data Entry Operators (DEOs) in the Tahasils of Cuttack and other districts should be regularized in terms of a letter dated 17th September, 2013 issued by the General Administration Department (GA Department), Government of Odisha since they had already completed six years of service and W.A. No.777 of 2021 and connected cases Page 6 of 28 had been appointed against sanctioned posts by following due procedure of selection. It was directed that they should be granted all the consequential and financial benefits in accordance with law within two months from the date of communication of the judgment.

2. While a detailed judgment was delivered in the first batch of writ petitions of which the lead petition was W.P.(C) No.19951 of 2020 (Patitapaban Dutta Dash v. State of Odisha) and against which the State of Odisha has filed W.A. No.777 of 2021, in all the connected writ petitions the said judgment was followed to grant identical relief. Those orders have been challenged in the companion appeals by the State of Odisha in this batch.

3. This Court has heard the submissions of Mr. Ashok Kumar Parija, learned Advocate General (AG) assisted by Mr. M.K. Khuntia and Mr. R.N. Mishra, learned Additional Government Advocates for the Appellants-State and Mr. B.S. Tripathy1, learned counsel for the Respondents in the appeals.

Background facts

4. The background facts are that on 24th November, 2006 the Revenue Disaster Management Department ('RDM Department'), Government of Odisha wrote to the Director, Land Records and Service, Odisha regarding "engagement of Date Entry Operators- cum-Assistants for preparation and distribution of land passbooks on contract basis". The said letter reads as under:

"Sub: Engagement of Data Entry Operators-cum- Assistants for preparation and distribution of Land Pass Books on contract basis.

Sir, W.A. No.777 of 2021 and connected cases Page 7 of 28 I am directed to convey the sanction and creation of 600 posts of Data Entry Operators-cum-Assistants who are to be engaged in the different districts to render assistance for preparation and distribution of Land Pass Books for a period of six months at the rate of Rs.4000/-P.M. each as per the numbers indicated in the enclosed statement, which is based on the number of Khatadars available in the districts as communicated by you earlier.

2. While conveying the sanction order to the respective Collectors the following aspects may be kept in view.

i) The recommended qualification would be Matriculate with knowledge of computer operation.

The temporary collection staff who were engaged earlier in collection work may be given preference. If the required number of Data Entry Operators-cum- Assistants are not available in the district after exhausting the above conditions and wherever service providers were available, the Collectors may take their Assistance to fill up the residual vacancies.

ii) If service providers are not available in their districts the Collectors are free to engage from the open market.

iii) The engagement orders will be issued by the respective Collectors specifying the date of engagement clearly for a period of six months. The disengagement is automatic on expiry of term and no termination order needs to be issued again.

iv) A copy of the sample format prescribed by the Finance Department for engagement of hand on contractual basis is appended hereto for your reference. A copy of the same may also be endorsed to each Collector alongwith the sanction order for their reference and use.

3. The necessary instructions to the respective Collectors may be issued in the above line with due approval of the Member, Board of Revenue and copy W.A. No.777 of 2021 and connected cases Page 8 of 28 of the same may also be sent to this Department for record.

4. These instructions are issued with the concurrence of Finance Department vide U.O.R. 452/GS-I dated 18.11.2006."

5. Following the said letter, the Respondents were engaged as DEOs after a computer test was held. For that purpose, each of the Respondents was informed by the Collector, Cuttack, by a letter dated 24th January, 2008 that the candidate's name had been shortlisted from the list supplied by the District Employment Exchange and that a computer test was going to be organized on 31st January, 2008. A candidate was asked to come for the said test along with xerox certified copies of the relevant documents. It is stated that a written undertaking was obtained from each of the candidates in a proforma which inter alia was in the form of acknowledgement that candidate "was fully aware that my appointment is purely temporary and on contract basis and can be terminated at any time without any notice and assigning any reason thereof. Further, I am fully aware that my continuance in the said post is contingent upon extension of the said post with concurrence of Finance Department and subject to my satisfactory performance to be evaluated by the appropriate authority". The written undertaking further stated that "in future I shall not claim regular scale of pay and other allowances for continuing in the said post merely on the ground that I have been given a contract appointment and my contractual appointment have been extended from time to time". It is not in dispute that the said engagement has in many of the cases in this batch, continued for well over 10 years now. In W.A. No.777 of 2021 and connected cases Page 9 of 28 fact, all the contesting individual Respondents are even today working as DEOs in the various Taluks.

6. The issue of regularization of the services of the DEOs was discussed at a meeting convened by the Chief Secretary, Government of Odisha held on 28th April, 2012. The minutes of the meeting acknowledged that "600 DEOs-cum-Assistant Posts" was created (in 171 Old Tahasils) of the State by abolishing equivalent number of consolidation Grade-I Posts in 2006". It further acknowledged that the DEOs were to initially facilitate issuance of land passbooks but subsequently they attended all the computerization related work of the Tahasils. It was further acknowledged in the minutes of the said meeting that over the years these DEOs were found to be very useful to run day to day affairs of Tahasil work. There were two categories of DEO available in Tahasil office (i) Directly recruited through test and

(ii) Outsourced from Service Providers. Regularisation of these posts was stated to be in the public interest.

7. After a threadbare discussion, the following decisions were taken: (i) the DEOs engaged contractually in Tahasils should continue and should not be disengaged till a decision regarding regularization is finalized and (ii) the Government is contemplating to frame a policy of regularisation of contractual DEOs of various Department. The policy so framed shall be applicable to these DEOs. The minutes of the said meeting was circulated by a letter dated 3rd May, 2012 of the Addl. Secretary to the Govt., RDM Department.

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8. On 17th September, 2013 the GA Department issued the resolution indicating the Government's policy on regularization. The said resolution, which was gazetted, explained that the regular appointment of Group C and Group D employees under the State Government involving the following categories was under active consideration of the Government for some time past:

(i) contractual appointments/engagements made against the contractual posts created with the concurrence of the Finance Department on abolition of the corresponding regular post or

(ii) contractual appointments/engagements made against the contractual posts created with the concurrence with the Finance Department without abolition of any corresponding regular posts in case of news offices, or

(iii) for strengthening of the existing offices/services

9. The requirement was that (i) the engagements should have been made following the recruitment procedure prescribed for the corresponding regular posts and (ii) the principle of reservation as decided by the State Government from time to time. The regularization of the contractual employees would be effective from the date of completion of six years of service or from the date of publication of Resolution (i.e.) 17th September, 2013 whichever was later, in the order in which the names appeared in the gradation list. The period of six years was to be counted from the date of contractual appointment prior to the publication of the said Resolution. Upon regular appointment, the contractual posts, if any, would get converted to regular sanctioned posts.

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10. Following this, the Orissa Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 ('the 2013 Rules') were issued by way of a Notification dated 12th November, 2013. The 2013 Rules recognized two categories of contractual employees:

(a) Category I: Contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department without following the recruitment procedure including the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 ('ORV Act') and the rules made there under and Rules regulating recruitment for the regular posts;

(b) Category II: Contractual Engagements made through manpower service provider agencies with concurrence of Finance Department.

11. Rule 8 of the 2013 Rules is relevant and reads as under:

"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 competed year of continuous service subject to a maximum of fifteen per cent, which shall be added W.A. No.777 of 2021 and connected cases Page 12 of 28 to the marks secured by them for deciding the merit position."

12. On 16th January, 2014 the GA Department issued yet another Resolution whereby while reiterating the conditionalities of regularization of contractual employees (similar to the Resolution dated 17th September, 2013), it was made explicit in para 2 as under:

"2. A part from the contractual employees fulfilling the conditionalities elucidated in Para 1 above, there are other categories of contractual employees engaged with or without creation of posts with the concurrence of Finance Department, without following the relevant recruitment and reservation Rules. There are also contractual employees engaged on out sourcing basis through service providing agencies. These contractual employees are not eligible for regularization as per the aforesaid Resolution."

13. Thus, it was clear as to who was not eligible for regularization. in terms of the Resolution dated 17th September, 2013. A High- Powered Committee (HPC) was to be constituted in order to ensure that the mandatory eligibility conditions spelt out therein.

14. On 24th February, 2016 a letter was written by the RDM Department to the Secretary, Board of Revenue. Odisha, Cuttack regarding "Creation of 692 posts of Junior Clerk in lieu of abolition of 692 corresponding regular vacant posts in Survey and Settlement Organization under Board of Revenue, Odisha, Cuttack." The said letter conveyed the sanction of the Governor to the creation of 692 posts of Junior Clerk in 317 Tahasils "in lieu of abolition of 692 corresponding regular vacant posts in his survey and settlement organization under the Board of Revenue." These posts included that of the Draftsman, Amin and Musharim.

W.A. No.777 of 2021 and connected cases Page 13 of 28 It was further noted that "the posts so created is required for regularization of Data Entry Operators engaged on contractual basis in all the Tahasils of the State by following the relevant recruitment rules and provisions of ORV Act as per the stipulations contained in G.A. Department Notification No. 32010/Gen dated 12.11.2013 and their emoluments & service conditions shall be governed by the aforesaid notification of G.A. Department."

15. Asserting their right to regularization as a result of long years of service, and in terms of the Resolution dated 17th September, 2013, the Respondents first approached the Orissa Administrative Tribunal (OAT) with O.A. No.554 (C) of 2019 and batch in which the interim order was passed by the OAT on 1st March, 2019 permitting them to continue as DEOs but clarifying that the pendency of the OA would not be a bar for the State to consider their prayer for regularization.

16. On 26th September, 2019 while extending the contractual appointment of the DEOs, it was stipulated by the Government that such extension will be up to 28th February, 2020 or "till completion of the process of recruitment and appointment against such 692 posts of Junior Clerks created for the Tahasils whichever is earlier."

17. Following the abolition of the OAT with effect from 2nd August, 2019 and upon request by the Respondents, the cases in the OAT were transferred to this Court on 18th November, 2019 and registered as writ petitions one of which was WPC (OAC) No. 554 of 2019 filed by Patitapaban Dutta Dash.

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18. Apprehending that in view of the clause in the extension letter dated 26th September, 2019 that the extension would be only till such time 692 posts of Junior Clerks are regularly filled, Patitapaban Dutta Dash filed W.P.(C) No.3678 of 2020. The said writ petition was disposed of by this Court on 3rd February, 2020 stating that the Government should examine if the Petitioners' services could be regularized as per the Resolution dated 17th September, 2013.

19. Meanwhile, on 16th March, 2020 a decision was taken at a meeting of the HPC under the Chairmanship of the Chief Secretary that the DEOs working in the Tahasils of the State cannot be regularized. The minutes of the said meeting reveal that it was decided that the DEOs were not entitled to be regularized as neither any recruitment rule had been followed while engaging them nor the ORV Act had been followed. The said minutes noted that as of 16th March, 2020 572 DEOs were working in different districts "out of which 491 posts were engaged by Collectors on contractual basis and the rest 81 by outsourcing through service providers."

20. After the minutes of the meeting dated 16th March, 2020 a fresh set of writ petitions were filed including W.P.(C) No.19951 of 2020. In view of the above development, Patitapaban Datta withdrew WPC (OAC) No. 554 of 2019 on 2nd September 2021 before this Court.

W.A. No.777 of 2021 and connected cases Page 15 of 28 First round of litigation

21. W.P.(C) No.19951 of 2020 and the connected petitions were disposed of by the learned Single Judge on the first date of its hearing on 20th August, 2020 holding that their cases were squarely covered by the ratio of the decision of the Supreme Court in State of Karnataka v. Umadevi (2006) 4 SCC 1 and State of Karnataka v. M. L. Kesari 2010 (II) OLR (SC) 982 since each of the Petitioners had put in more than 10 years of service as DEOs albeit on contractual basis and were covered by the Resolution dated 17th September, 2013. The State was accordingly directed to consider their cases for regularization within a period of four months.

22. The above orders were then challenged in a batch of writ appeals. Three of these writ appeals i.e. W.A. Nos.100, 101 and 29 of 2021 were disposed of by a Division Bench of this Court on 26th March, 2021 and 21st June, 2021 setting aside the directions issued by the learned Single Judge that the services of the Respondents should be regularized and they should be granted consequential benefits. The Division Bench permitted the Respondents (Writ Petitioners) to make representations to the State which were to dispose them of by a reasoned order.

23. Meanwhile on 18th March 2021 an order was issued by the RDM Department extending the tenure of 572 contractual posts of DEOs engaged in the Tahasils by a further period of six months up to 31st August, 2021.

24. The remaining writ appeals came up for hearing on 17th June, 2021 before another Division Bench. After noting that the writ W.A. No.777 of 2021 and connected cases Page 16 of 28 petitions had been disposed of by the learned Single Judge on the very first date of hearing without an opportunity to the State to file a reply, the orders were set aside by the Division Bench and the cases were remitted to the learned Single Judge to be decided afresh after ensuring pleadings were completed in a time-bound manner.

Second round of litigation

25. Thereafter, upon completion of pleadings, the impugned judgment dated 9th September, 2021 came to be passed by the learned Single Judge allowing W.P.(C) No.19951 of 2020 and the connected writ petitions of the batch by holding that their cases were covered by the Resolution dated 17th September, 2013 and issuing a mandamus to the State of Odisha to regularise their services. This judgment which is common to the entire batch of writ petitions has been challenged in the present writ appeals, the lead case of which is W.A. 777 of 2021.

26. In W.A. No.777 of 2021 the following order was passed by this Court on 18th November, 2021:

"1. Mr. Khuntia, learned Additional Government Advocate (AGA) for the Appellant drew attention of this Court to the Odisha Group C and Group D Posts (Contractual Appointment) Rules, 2013 and submitted that among the many grounds urged by the Appellants to assail the impugned judgment dated 9th September, 2021 of the learned Single Judge one is that the learned Single Judge was in error in observing that the above rules have no application in view of the earlier resolution dated 17th September, 2013 of the General Administration Department (GAD). According to him, the Respondents would be considered in their turn for regularization in terms of Rule 5 read with Rule 8 (a) of the aforementioned Rules and that the decision in W.A. No.777 of 2021 and connected cases Page 17 of 28 State of Karnataka v. Uma Dei (3), (2006) 4 SCC 1 will have no application since the contractual appointments of the Data Entry Operators (DEOs) in the present case were not against the sanctioned posts of DEOs but the sanctioned post of Junior Clerks and that too on a short term contractual basis.

2. When asked by the Court how many of the existing contractual employees have in fact benefited by Rule 8(a) of the 2013 Rules, AGA short time for instructions.

3. The further submission of the learned AGA is that the GAD resolution dated 17th September, 2013 has to be read with the subsequent resolution dated 16th January, 2014 which further clarifies the conditions on which the contractual appointees are eligible for regularization. It is submitted that a High Power Committee (HPC) has to examine whether in fact the contractual employees satisfy the conditions for being regularized. When asked whether in the present case an HPC was constituted to consider the claims of the Respondents, again Mr. Khuntia states that he has to seek instructions.

4. Mr. Tripathy, learned counsel states that the Respondents do not intend to file any contempt petition as of now. In that view of the matter, no interim orders are called for.

5. An additional affidavit be filed by the Appellant within two weeks clarifying the above aspects.

6. List on 18th January, 2022."

Applicability of the 17th September 2013 Resolution

27. It must be noted at the outset that the case of the Respondents as articulated by the Mr. B.S. Tripathy-1, learned counsel is that they are not covered by the 2013 Rules but by the Resolution dated 17th September, 2013. The case of the Appellants-State of Odisha as articulated by the learned AG, on the other hand, is that W.A. No.777 of 2021 and connected cases Page 18 of 28 it is only the 2013 Rules if at all that would apply but definitely not the Resolution dated 17th September, 2013.

28. In terms of the Resolution dated 17th September, 2013 there were three stipulations to be fulfilled. One was that the engagement had to be against sanctioned posts created by the abolition of corresponding posts. This stands fulfilled since by the letter dated 24th November, 2006 as 600 posts of DEO were in fact created and in terms of the minutes of the meeting of the Chief Secretary held on 28th April, 2012 the said 600 posts were created by abolishing equivalent number of consolidation Grade I posts.

29. It was contended by the learned AG that the said 600 posts were 'temporary posts' as defined in Clause 45 of the Odisha Service Code, which defines such post to mean "a post carrying a definite rate of pay and sanctioned for a limited time." In response to the Respondents' contention that the said 600 posts have not in fact been abolished as of date, the learned AG has with the written note of submissions dated 4th April 2023 enclosed a file noting dated 18th November 2006 which states that the 600 posts of DEO "will be temporary and contractual which will be abolished on the expiry of six months."

30. The fact remains that the engagement of the Respondents as DEOs has been continued from time to time with the last extension being up to 31st August 2021. It is contended by the learned AG in the written note of submissions that with there being no further extension of the engagement of the DEOs beyond 31st August, 2021, the 600 posts should be 'deemed to have been abolished." But then the Respondents have with their written W.A. No.777 of 2021 and connected cases Page 19 of 28 submissions dated 3rd April 2023 enclosed copy of a letter dated 2nd December 2022 issued by the RDM Department to all the Collectors instructing them to keep paying monthly remuneration to the contractual DEOs during the pendency of the present writ appeals.

31. The position that emerges from the above discussion is that there is as of date no formal abolition of the 600 posts of DEOs created earlier by the letter dated 24th November 2006. Even if one were to assume that they are 'deemed' to be abolished then too if one were to go by the letter dated 24th May 2016 of the RDM Department which created 692 posts of Junior clerks and the subsequent letter dated 26th September 2019 of the RDM Department which granted extension to the DEOs by six months from 1st September 2019 or "till completion of the process of recruitment and appointment against such 692 posts of Junior Clerks created for the Tahasils whichever is earlier" the position is that the said 692 created posts do exist for being filled up by way of regular recruitment of DEOs. Either way, it cannot be said that there are no sanctioned posts to accommodate the DEOs. The question of having to create 'supernumerary' posts to regularise the services of the DEOs does not arise. There was no such direction issued by the learned Single Judge, even by implication. So much for the first of the three criteria of the Resolution dated 17th September 2013.

32. The second of the three criteria was that "the recruitment procedure prescribed for the corresponding regular posts" should have been followed. As far as this condition is concerned, the AG referred to the Odisha Secretariat Data Entry Operators (Methods W.A. No.777 of 2021 and connected cases Page 20 of 28 of Recruitment and Conditions of Service) Rules, 2008 (2008 Rules) notified on 30th December, 2008. The method of recruitment as stipulated in 2008 Rules was the holding of a competitive examination preceded by an advertisement for filling up of the vacancy and scrutiny of the applications. The AG contended that none of the Respondents have undergone any selection process that is even remotely close to the above recruitment procedure.

33. It is seen that the 2008 Rules applied to the DEOs working in the Secretariat and not elsewhere. Secondly, they were prospective and became operational only after their notification on 30th December, 2008. The Respondents were, however, engaged earlier than the 2008 Rules, for an initial period of six months, following a computer test organized by the Collectorates of various Districts. If that was the recruitment procedure followed at the relevant time and if in fact the Respondents underwent that procedure of selection, it could not be said that no recruitment procedure was followed. In any event there was admittedly no prescribed recruitment procedure for "the corresponding regular posts" since till then there were no 'equivalent' posts comparable to that of DEOs. Further each of the Respondent DEOs have by now i.e. 2023 put in more than 10 years of continuous service.

34. The third condition is that the principle of reservation of posts as set out in the ORV Act must have been followed. From the narration of facts thus far it is noticed that the responsibility for providing for reservations, even for contractual engagement, was with the government. Perhaps, at the time the engagement of the Respondents on contractual basis as DEOs took place, it was not W.A. No.777 of 2021 and connected cases Page 21 of 28 expected to continue beyond 6 months and therefore, it was not thought to apply the ORV Act. As it transpired their engagement has been continued from time to time without a break for over 10 years in some cases and even 15 years in certain others. If this was a lapse, then the Government is to blame and the Respondents who had no say in it, cannot be denied regularisation on that score alone. Also, as will be noted hereafter, the State government has in other similar cases of contractual engagement accepted the Court verdicts and regularised the services of the persons so engaged even when in their cases, the ORV Act was not followed.

35. Mr. Tripathy, learned counsel for the Respondents, has placed on record a copy of the office order dated 14th December, 2018 issued by the RDM Department listing out the actual tasks entrusted to DEOs in view of the various e-Governance applications launched by the Government. The relevant portion of the said office order reads as under:

"xxx xxx xxx In view of the above, the following works/assignments are to be entrusted to the Data Entry Operators engaged in Tahasil Offices and this need to be followed scrupulously.

i) Day to day up-dation of various e-Governance applications in the Tahasils like LRMS, RCCMS, CCMS and CMS etc.

ii) To facilitate the Record Keeper for entry of required inputs for correction of RoR and dispatch thereof.

iii) To handle e-District related matters for quick issue of various Miscellaneous Certificates.

iv) Preparation of all MIS/MPR as required and necessitated.

v) To handle e-dispatch work.

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vi) Preparation of Salary bill of employees of the Tahasil under HRMS & IFMS platform.

The above works are only indicative but not exhaustive. These may vary as per requirement."

36. Therefore, it is obvious that the DEOs are needed for the work of the Government and have been found fit and qualified to undertake all of the above tasks. This explains why their services have been continued from time to time.

37. As regards the submission of the learned AG that the DEOs do not satisfy the requirement of the Resolution dated 16th January, 2014 issued by the GA Department, it is seen that the said resolution more or less encapsulates the three conditionalities in the Resolution dated 17th September, 2013 which, for the reasons already discussed, do stand fulfilled in the present case.

38. During the course of his submissions, the learned AG contended that the entitlement of the Respondents was only to age relaxation and weightage as provided in the 2013 Rules. However, it was pointed out by Mr. Tripathy learned counsel for the Respondents, that the 2013 Rules stand repealed by the Odisha Groups "B", "C" and Group "D" posts (Repeal and Special Provisions) Rules, 2022 notified on 16th October, 2022. Mr. Tripathy also referred to a communication dated 9th February, 2023 issued by the Chief Secretary in General Administration & Public Grievance Department to all Additional Chief Secretaries and Principal Secretaries regarding filling up of vacancies of Groups A, B and C posts on regular basis. This appears to indicate that the 2013 Rules have been given up for good by the State Government.

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39. Faced with the above situation, the learned AG volunteered, during the course of arguments, and has also put it in writing in the written note of submissions dated 4th April 2023, that "this Hon'ble Court, in the interests of substantial justice, may extend the benefit of age relaxation and weightage to the Respondents herein even though the said Rules stand repealed." The learned AG also referred to a similar direction issued by the Supreme Court in University of Delhi v. Delhi University Contract Employees Union 2021 SCC Online SC 256.

Other similar matters

40. At this juncture, the Court would like to refer to the State Government's approach to other cases of regularisation of contractual employees, which has also been adverted to by the learned Single Judge in the impugned judgment. The first one is the judgment of the OAT in OA No. 2172 (C) of 2015 (Jatin Kumar Das v. State of Odisha) which was affirmed both by this Court as well as the Supreme Court of India with the dismissal of the State's SLPs. The State Government has issued a series of orders implementing the said judgment. In seeking to distinguish the said judgment, it is contended by the AG that in the said case the posts were sanctioned and the applicants were subject to a screening test. Both the conditionalities stand fulfilled in the present cases as well, as discussed earlier in this judgment.

41. The second instance is the judgment dated 10th February 2021 of the Division Bench of this Court in W.A. 822 of 2020 (State of Odisha v. Biswamitra Das), where again after the dismissal of the State's SLPs by the Supreme Court, the said judgment has been implemented. The said judgment is sought to be distinguished by W.A. No.777 of 2021 and connected cases Page 24 of 28 the AG by contending that there was a selection held and that the posts there were sanctioned. For the reasons already discussed, these factors are present in the present cases as well.

42. Apart from the above instances, the Respondents have placed before this Court a compilation of orders of this Court, which have been upheld by the Division Bench, and in some instances the Supreme Court of India. These orders have been implemented by the State Government and the services of the successful contractual employees have been regularised. A sampling of such orders include the Office Order dated 1st August, 2014 issued by the ST & SC Development Department, Government of Odisha, the Office Order dated 31st December, 2020 issued by the Panchayati Raj and D.W. Department regularizing the services of one Sri Kishore Chandra Das, a contractual driver following the order passed by the High Court in W.P.(C) No.16023 of 2020 affirming the order passed by OAT in OA No.770 of 2017. Likewise, the order passed by this Court in W.P.C. (OA) No.814 of 2017 (Susanta Kumar Dash v. State of Odisha) on 23rd June, 2021 has been implemented by an Office Order dated 23rd March, 2022 of the Panchayati Raj and D.W. Department. There are also other orders of regularization issued on 21st August, 2018. The order passed by the High Court on 6th January, 2020 in W.A. No.353 of 2019 (Member Secretary Orissa Water Supply and Sewerage Board v. Soumendra Kumar Samantaray) has been affirmed by the Supreme Court by its order dated 17th November, 2020 and this order too has been implemented by the Government. The services of all the above similarly placed persons having been regularised by the State Government, there should be no difficulty in implementing the impugned judgment of the learned Single Judge. If indeed 2013 W.A. No.777 of 2021 and connected cases Page 25 of 28 Rules are not available any longer, it would be unfair not to extend the benefit of the Resolution of 17th September, 2013 to the Respondents who are obviously qualified and have the requisite experience having worked as DEOs in the Tahasils for more than 10 years. Therefore, instead of adopting the route of 'age relaxation and weightage' de hors the replead 2013 Rules, the State Government might as well implement the impugned judgment of the learned Single Judge particularly considering that 692 sanctioned posts of Junior Clerks created by the letter dated 24th May 2016 of the RDM Department for the very purpose of regular engagement of DEOs, are available.

Case Law

43. As regards the decision in Umadevi (supra) as explained later in M.L.Kesari (supra), the Respondents can possibly seek the extension of the benefit of the ratio of the aforementioned decisions for two reasons. One, that the Respondents were engaged against sanctioned posts and two, they were engaged after qualifying in a computer test. In M.L. Kesari (supra), the Supreme Court explained:

"It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, 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 possess the prescribed W.A. No.777 of 2021 and connected cases Page 26 of 28 minimum qualifications, the appointments will be considered to be illegal. But where the person 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.

Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize 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." (emphasis supplied)

44. Going by the above legal position, in the present cases, at the highest, the Respondents could be considered to be 'irregularly' appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularisation. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai v. State of Bihar (2015) 8 SCC 265, Sheo Narain Nagar v. State of U.P. AIR 2018 SC 233 and in Rajnish Kumar Mishra v. State of U.P. (2019) 17 SCC 648.

Other points urged

45. In the written submissions of the Appellants-State three new points, not mentioned during the course of arguments or in the memorandum of appeal in W.A. 777 of 2021, have been urged. The first is that Respondents 7 and 8 in W.A. 777 of 2021 were disengaged as DEOs in 2015 and re-engaged in 2018 and therefore had not completed even 3 years before filing the writ petition. The second is that of the 572 DEOs whose tenure has been continued, 91 have been engaged through outsourcing agencies. Thirdly, it is stated that many DEOs have been engaged after 2010.

46. Since the above submissions have been made after the conclusion of the hearing, in the written note, there is no W.A. No.777 of 2021 and connected cases Page 27 of 28 opportunity to the Respondents to reply to them. In any event, assuming they are factually correct, if DEOs have been engaged since 2010, they have by now completed over 10 years. If 91 of them are through outsourcing agencies, then their cases can be considered with other similarly placed DEOs who have come in through outsourcing, whose cases are being considered in a separate batch of matters listed in this Court on 8th August 2023. Thirdly, as regards Respondents 7 and 8, the 2013 Rules had required at least 6 continuous years of service for being eligible for regularisation. Since the orders of implementation of the judgment of the learned Single Judge will be obviously issued separately for each person, case by case, the State will keep this aspect in view in individual cases. None of these appear to be good reasons to deny implementation of the impugned judgment of the learned Single Judge.

Conclusion

47. For the aforementioned reasons, the Court is not persuaded to interfere with the impugned judgment of the learned Single Judge. It should now be implemented in letter and spirit within a period of twelve weeks. The writ appeals are dismissed, but in the circumstances, with no orders as to costs.

(S. Muralidhar) Chief Justice (G. Satapathy) Judge SK Jena/Secy.

W.A. No.777 of 2021 and connected cases Page 28 of 28

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Orissa High Court