Orissa High Court
Dr. Amiya Kumar Mohanty vs State Of Odisha & Ors. ..... Opposite ... on 10 September, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17769 of 2024
An application filed under Articles 226 and 227 of the
Constitution of India.
Dr. Amiya Kumar Mohanty ..... Petitioner
Mr. Krishna Chandra
Sahu, Adv.
-versus-
State of Odisha & Ors. ..... Opposite Parties
Mr. Dayanidhi Lenka,
A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of Hearing : 18.07.2025 | Date of Judgment: 10.09.2025
______________________________________________________
A.K. Mohapatra, J. :
1. The abovenamed Petitioner, who has been working as an Assistant Surgeon and has rendered his service for first 31 years, has approached this Court by filing the present writ application under Article 226 of the Constitution of India with a prayer for issuance of a writ of mandamus to the Opposite Parties to regularize the service of the Petitioner as a Regular Assistant Surgeon by taking into consideration his uninterrupted and long Page 1 of 40 continuance in service for more than 3 decades and to quash the impugned rejection order dated 06.07.2024 under Annexure-17 to the writ application. The Petitioner in addition to the prayer for regularization of his service, has also prayed for an direction to the Opposite Parties to disburse in his favour all consequential service and financial benefits admissible to him.
2. The factual background of the Petitioner's case, bereft of all unnecessary details, is that the Petitioner on completion of his MBBS course and after obtaining a valid degree was initially engaged as an Assistant Surgeon on ad-hoc basis w.e.f. 23.12.1992 pursuant to order dated 18.12.1992 at Annexure-1. While the Petitioner was continuing in service, the Govt. of Odisha, vide notification dated 29.09.1993, regularised the services of several similarly situated ad-hoc Assistant Surgeons on the basis of a validation act w.e.f. 11.05.1993.
3. While the Petitioner was serving as an Assistant Surgeon, the Opposite Parties opened a service book of the Petitioner. They also opened GPF and GIS account of the Petitioner and the petitioner was extended with the benefit of pay fixation and he was being extended with the benefit of annual increment from time to time as was being sanctioned by the Govt. in favour of the Page 2 of 40 Petitioner. While this was the position, the Govt. of Odisha sought for service particulars of Ad-hoc/ Contractual Assistant Surgeons and Dental Surgeons who have already completed five years of continuous service under the State Govt. vide their letter dated 10.04.2013. In reply to the aforesaid letter, the Opposite Party No.2 vide its letter No.11619, dtd.24.04.2013 has sent a list of 20 Ad-hoc/ Contractual Assistant Surgeons and Dental Surgeons to the different CDMOs under whom the abovenoted 20 listed doctors were discharging their duties with a specific request for verification of their service particulars, particularly with regard to 5 years of continuous service by such unlisted doctors for regularization of their service. The said list of doctors includes the name of the Petitioner at Sl. No.3 as per Annexure-6.
4. Pursuant to the letter of the Opposite Party No.2 dated 24.04.2013, the CDMO, Mayurbhanj vide letter No.3319 dated 14.05.2013 has sent the details of service particulars of the Petitioner on 14.05.2013, at Annexure-7 to the writ application. On receipt of such detailed service particulars of the enlisted doctors from different CDMOs, the Govt. of Odisha vide resolution dated 16.01.2015 has regularized the service of 8 contractual Dental Surgeons with the concurrence of Law Dept. Page 3 of 40 and, as such, the abovenoted 8 doctors were brought over to the regular establishment with a regular scale of pay as per Annexure-
8. However, the case of the Petitioner, who had completed of 22 years of service by then, was not considered and he was not extended with the benefit of regularization of his service.
5. Since the case of the Petitioner was not considered by the Opposite Parties for regularization of his service, the Petitioner approached the Opposite Parties by submitting a series of representation to the Govt. through proper channel with a prayer for regularization of his service in the same manner as has been done in the case of similarly situated ad-hoc/ contractual Assistant Surgeons as well as Dental Surgeons as per the Annexure-10 series. Although such representations were filed on 28.06.2019, 05.01.2021, 13.07.2021 and 21.04.2023, however they are still pending before the Opposite Party No.1 for consideration. In the meanwhile, the Opposite Party No.3 vide letters dated 23.09.2019, 06.01.2020 and 22.12.2021 furnished the service particulars along with details of place of posting of the Petitioner to the Govt. under Annexure-11 series. The Opposite Party No.2 vide his letter dated 31.01.2022 has directed the Opposite Party No.3 to furnish the copies of the letter/ order in connection with regularization of Page 4 of 40 service of the Petitioner. Pursuant to the aforesaid letter of the Opposite Party No.2 dated 31.01.2022, the Opposite Party No.3 vide letter No.859, dtd.08.02.2022 has furnished the detailed service particulars along with all the letters/ orders in support of the Petitioner's case for consideration by the appropriate authority at the Govt. level as per Annexure-13 to the writ application.
6. Finally, while the Petitioner was continuing on contractual basis and while his case was still under consideration of the Govt., the Govt. of Odisha vide notification No.1476 dated 19.01.2023 published an order thereby regularizing the services of 5 nos. of ad-hoc/ Contractual Dental Surgeons as per Annexure-14 to the writ application. Unfortunately, the case of the Petitioner was also not considered this time. Being aggrieved by such inaction of the Opposite Parties in regularizing the service of the Petitioner, and finding no other alternative, the Petitioner initially approached this Court by filing W.P.(C) No.36924 of 2023. The said Writ application was disposed of on 17.11.2023 thereby granting liberty to the petitioner to file a fresh representation before the Opposite Party No.1 and the Opposite Party No.1 was directed to consider the case of the Petitioner keeping in view the fact that similarly situated doctors appointed on contractual basis have been Page 5 of 40 regularized in the meantime in view of the Resolution dated 16.01.2015 of the Health and Family Welfare Dept., Govt. of Odisha. After disposal of the earlier writ application, although the Petitioner approached the Opposite Party No.1 by filing a detailed representation on 24.11.2023 at Annexure-16, however, the same has been rejected by the Opposite Party No.1 vide order dated 06.04.2024 as per Annexure-17 to the writ application. Being aggrieved by such rejection of his prayer vide order dated 06.07.2024 at Annexure-17, the Petitioner has once again approached this Court by filing the present writ application.
7. A detailed counter affidavit has been filed on behalf of the Opposite Party No.1 sworn by the Additional Secretary to Govt., Health and Family Welfare Dept. In the counter affidavit it has been stated on behalf of the Opposite Party No.1 that the representation of the Petitioner dated 24.11.2023 was considered by the Opposite Party No.1 pursuant to the order dated 17.11.2023 passed in W.P.(C) No.36924 of 2023. After due consideration and careful examination, the prayer made by the Petitioner in his representation dated 24.11.2023 has been rejected by a speaking order of the H&FW Dept. dated 06.07.2024.
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8. In the counter affidavit, the Opposite Party No.1 has not disputed the initial engagement of the Petitioner as an Assistant Surgeon on ad-hoc basis vide department notification dated 18.12.1992 and, accordingly, the Petitioner jointed at PHC (N) Mankadakenda under CHC Khunta, Dist. Mayurbhanj on 23.12.1992. Initially the Petitioner worked on ad-hoc basis up to 31.12.1999. Thereafter, he worked on contractual basis. It has been shown that there was a break in service on 01.01.2000 and from 31.03.2001 to 20.09.2001. In the counter affidavit it has been specifically admitted that services of 195 Assistant Surgeons appointed on ad-hoc basis by the Government during the year 1983 to 1988 without the recommendation of OPSC have been regularized w.e.f. 04.05.1993 by virtue of a Validation Act, 1993. It has been stated that since the Petitioner was not serving during the aforesaid period, he will not be covered under the Validation Act, 1993 and, as such, the Petitioner was not extended the benefit of regularization of his service as an Assistant Surgeon. Moreover, no subsequent Validation Act has ever been notified and that the appointment OMHS cadre can be made through OPSC only.
9. With regard to regularization of 8 contractual Dental Surgeons in the year 2015, it has been stated in the counter Page 7 of 40 affidavit that the same has been made vide a Department Resolution dated 16.01.2015 with the concurrence of GA & PG Department and Law Department and on the basis of the fact that in absence of specific Rules governing the recruitment to the post of Dental Surgeon, the procedure adopted for recruitment of those 8 candidates against the contractual post can never be said to have fallen short of legality. Similarly, the service of 5 Dental Surgeons, who were engaged on contractual basis by different CDM & PHOs, have been regularized vide notification dated 09.01.2023 with the concurrence of GA&PG Department and Law Department.
10. So far the regularization of service of the Petitioner is concerned, it has been stated that the Finance Department has observed that the Validation Act would be applicable where appointment has not been made in violation of recruitment procedure. Since, in the instant case, the Petitioner has been appointed on contractual basis in violation of the existing rules, his case was not considered by the Opposite Party No.1. Moreover, emphasis has been laid in the counter affidavit on the observation of the Finance Dept. regarding condonation of break period, i.e., Page 8 of 40 although the break period between two regular services can be condoned, however, the same will not apply to contractual service.
11. In the counter affidavit, the Opposite Parties have referred to the judgment of the Hon'ble Supreme Court in the case of Satchidananda Misra v. State of Orissa and Others reported in 2004 INSC 531, wherein the Hon'ble Supreme Court has upheld the judgment of this Court declaring the Section 3 of the Validation Act as ultra vires to the Constitution. It was held by the Hon'ble Apex Court that the attempt to regularize the appointments made in violation of the Recruitment Rules, 1979 by taking reserve to a Validation Act is illegal and invalid in law. As such, the regularization of service in view of the Section 3(1) of the Validation Act was held to be invalid and such ad-hoc appointments were not allowed to be legally regularized by the legislative measure. On the aforesaid ground, it has been stated in the counter affidavit that the prayer made by the Petitioner in the Writ application is devoid of merit.
12. A rejoinder affidavit has also been filed at the instance of the Petitioner. In the rejoinder affidavit it has been stated that the Opposite Parties have not disputed the factual backdrop as pleaded in the writ application. Further, the rejoinder affidavit clarifies that Page 9 of 40 by the time the service of 195 Assistant Surgeons, who were appointed on ad-hoc basis, were regularized by virtue of the Validation Act, 1993, the Petitioner was already in service on being appointed on ad-hoc basis and that the Petitioner was similarly placed with the abovenoted 195 Assistant Surgeons. Thus, it was pleaded that the Petitioner be treated at par with those 195 Assistant Surgeons whose service was regularized subsequently. Further, emphasis has been laid on the fact that the case of the Petitioner was being recommended and his service particulars were being sent to the Govt. for regularization. However, the government did not take any step to regularize the Petitioner either in the cadre post or in an ex-cadre post. Thus, it has been stated that the prayer of the Petitioner cannot be denied after the Petitioner has rendered service for more than 3 decades on the ground that the initial appointment of the Petitioner was not with the concurrence of the OPSC. Further, reference has also been made to the para-9 of the Counter Affidavit wherein the Opposite Party No.1 has admitted that with the concurrence of the GA&PG Dept. and Law Dept., Govt. of Odisha, some Assistant Surgeons were regularized in service subsequent to the regularization pursuant to the Validation Act of the year 1993. It Page 10 of 40 has been stated that the Assistant Dental Surgeons whose services were regularized subsequently are juniors to the Petitioner and had served only for 8 years. In fact, one of such candidates had served only 23 days on contractual service. So far the Petitioner is concerned, it has been mentioned that they he has served for more than 3 decades. Therefore, it was alleged that the conduct of the Opposite Parties is highly discriminatory and, as such, unsustainable in law.
13. In the rejoinder affidavit, the Petitioner has seriously questioned the submission of the Opposite Party No.1 with regard to the break in service. In the rejoinder affidavit an emphatic stand has been taken by the Petitioner that there was no break in service as the Petitioner was discharging his duties continuously for over 3 decades, at times with an artificial break of one day. With regard to the judgment referred by the Opposite Party No.1 in its Counter Affidavit, the Rejoinder Affidavit of the Petitioner reveals that the decision in question is based on a set of facts which can be clearly distinguished from the facts of the present case. While further elaborating, it has been stated that in the reported judgment of the Hon'ble Supreme Court the appointments were made in violation of the Rules, 1979, whereas, in the instant case the Petitioner has Page 11 of 40 been appointed as per the provisions of State Medical & Health Services Cadre though initially on ad-hoc basis, subsequently on contractual basis w.e.f. 02.01.2000. It has also been stated that the service of the Petitioner could very well be regularized by granting relaxation under the existing rules and by treating the Petitioner as an ex-cadre employee. In the rejoinder affidavit it has been emphasized that many employees of the State Government, who had worked continuously for a period of 6 years, have been regularized in service. In the aforesaid context, a reference has also been made to the judgment of the Hon'ble Supreme Court in the case of Jaggo v. Union of India & Ors., decided in SLP(C) No.5580 of 2024 vide judgment dated 20.12.2024 as well as in Shripal & Anr. v. Nagar Nigam, Ghaziabad, decided in Civil Appeal No.8157 of 2024 vide judgment dated 31.01.2025.
14. Heard Sri K.C. Sahu, learned counsel for the Petitioner as well as Sri D. Lenka, learned Additional Govt. Advocate for the State-Opposite Parties. Perused the Writ application as well as the documents filed along with the Writ application marked as Annexures. Also perused the counter affidavit and the rejoinder affidavit thereto filed by the Petitioner.
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15. Sri K.C. Sahu, learned counsel for the Petitioner at the outset argued that so far the factual aspect of the present Writ application is concerned, the same has not been substantially disputed by the Opposite Parties. He further contended that the Petitioner was initially appointed as an Assistant Surgeon on ad- hoc basis on 23.12.1992 as per the order under Annexure-1 and continued as such till he was engaged on contractual basis w.e.f. 01.01.2000. Learned counsel for the Petitioner further contended that while the Petitioner was continuing in service, the Opposite Parties extended the benefit of scale of pay with periodical annual increments. Moreover, the service book of the Petitioner was opened and he was also extended with the benefit of GPF and GIS by opening such accounts in favour of the Petitioner. It was also contended that the Petitioner was discharging duties at par with the regular Assistant Surgeons i.e. no distinction can be drawn between the service rendered by the Petitioner either on ad-hoc or on contractual basis with that of the service rendered by the Assistant Surgeons whose services have been regularized.
16. Learned counsel for the Petitioner, in course of his argument, further contended that while the Petitioner was continuing in service on contractual basis, the Govt. of Odisha Page 13 of 40 considered the case of the petitioner and, accordingly, the service particulars were sought for on 10.04.2013 along with many similarly situated doctors working under the government. Accordingly, 20 names were short-listed including that of some Dental Surgeons. However, while regularizing the service of Assistant Surgeons Dental on completion of 5 years of service vide Government Resolution dated 16.01.2015, i.e., cases of 8 nos. of Assistant Dental Surgeons (contractual), the service of the Petitioner was never considered for regularization. He further laid emphasis on the basis of the fact while regularizing the service of 8 Assistant Surgeons Dental on the basis of the criteria that they had completed 5 years of service in the year 2015, the Opposite parties did not consider the case of the Petitioner who had completed more than 2 decades of service as Assistant Surgeon. Although the Petitioner brought the aforesaid fact to the notice of the Opposite Party No.1 by filing several representations, however, such grievance of the Petitioner was never considered by the Opposite Party No.1. Emphasis was also laid on the fact that pursuant to subsequent letters of the government, the Opposite Party No.3 furnished the service details of the Petitioner. However, the Opposite Parties regularized service of 5 Assistant Page 14 of 40 Surgeons (Dental) vide notification dated 19.01.2023, once again the case of the Petitioner for regularization of his service was conveniently ignored by the Opposite Parties which amounts to gross discrimination and, as such, is violative of the principle enshrined in Article 14 & 16 of the Constitution of India. Emphasis laws also laid on the fact that some of the Assistant Surgeons (Dental) whose services were regularized, had served for only 23 days before regularization of their service as per Annexure-8 to the Writ application.
17. Mr. Sahu, learned counsel for the Petitioner further contended that pursuant to order dated 17.11.2023 in W.P.(C) No.36924 of 2023 although the Petitioner submitted a detailed representation on 24.11.2023 with a prayer for regularization of his service on the ground that he had served for more than 3 decades uninterruptedly, the Opposite Party No.1 without considering the representation of the petitioner in its proper prospective and without due regard to the order passed by this Court, rejected the representation vide order dated 06.07.2024 at Annexure-17 to the writ application. He further assailed the order of Annexure-17 on the ground that the same is illegal, erroneous and highly discriminatory.
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18. In reply to the stand taken by the Opposite Party No.1 in its counter affidavit, learned counsel for the Petitioner emphatically argued that the Opposite Party No.1 has not disputed the factual aspect of the matter. However, while considering the prayer of the Petitioner for regularization of his service on the ground that the Petitioner has successfully rendered service uninterruptedly for more than 3 decades, the Opposite Party No.1 has failed to apply the correct law as has been laid down by this Court as well as the Hon'ble Supreme Court of India. He would also argue that by the time the Validation Act, 1993 came into force, the Petitioner was already in service. As such, the Petitioner is squarely covered by the Validation Act, 1993. Thus, it was argued that the Opposite Parties while regularizing the service of 195 Surgeons pursuant to the Validation Act, 1993 have failed to consider the case of the Petitioner under the said validation act and, as such, the Petitioner has been grossly discriminated against. He further forcibly argued that in the event the Petitioner was found not to be covered under the Validation Act, 1993, the Opposite Parties by taking note of the long and uninterrupted service rendered by the Petitioner would have relaxed the OMHS cadre rule and regularized the service of the Petitioner, or, they Page 16 of 40 could have simply regularized the service of the Petitioner, against an ex-cadre post, on completion of 10 years of service by taking into consideration the length of the Petitioner's service, by applying the ratio laid down by this Court as well as the Hon'ble Supreme Court.
19. Mr. K.C. Sahu, learned counsel for the Petitioner, drawing attention to the orders under Annexures-8 and 14 to the writ application, contended that in the year 2015 as well as in the year 2023, service of some Dental Surgeons were regularized with the concurrence of the G.A&P.G. Dept. and Law Dept., Govt. of Odisha. He further contended that although by then the Petitioner was eligible for regularization neither any such consent was sought for from the G.A. & P.G. Dept. and Law Dept. of the Govt. of Odisha and the case of the Petitioner was never considered for regularization of his service. Such conduct clearly amounts to discrimination against the Petitioner by the State-Opposite Parties. He further argued that the Opposite Parties could not adopt two different set of yardsticks in respect of one category of employees i.e. Assistant Surgeons working under the Govt. of Odisha. Thus, it was argued that such conduct of the Opposite Parties is highly Page 17 of 40 illegal, arbitrary and discriminatory in nature and, as such, the same is unsustainable in law.
20. With regard to the break in service as alleged by the State- Opposite Parties, learned counsel for the Petitioner submitted that such a ground taken by the Opposite Parties in the Counter affidavit is wholly erroneous. Inasmuch as the Petitioner was appointed in the State Medical & Health Services Cadre on ad-hoc basis and, thereafter, the same was being extended from time to time. The aforesaid fact has also been admitted in the Counter affidavit by the Opposite Parties. Thus, it was argued that even if it is assumed for the sake of argument that there was a break of one or two days here and there, the same can very well be construed to be an artificial break created by the Opposite Parties to deny the legitimate claim of the Petitioner for regularization of his service. With regard to the Validation Act, 1993, learned counsel for the Petitioner contended that there is no quarrel with regard to the proposition of law laid down by this Court which had attained finality after confirmation of the judgment rendered by this Court by the Hon'ble Supreme Court of India. He further argued that the service of the Petitioner was never regularized under the Validation Act, 1993. The case of the Petitioner is that he was Page 18 of 40 appointed initially on ad-hoc basis, thereafter on contractual basis in State Medical & Health Services Cadre. In the said context, it was argued that on completion of 6 years of continuous service, the service of the Petitioner should have been regularized at par with the principle which is being adopted by the State Government in every other department for regularization of the service of ad- hoc/ contractual employees.
21. With regard to the regularization of the service of the Petitioner on the basis of the fact that the Petitioner has rendered his service uninterruptedly for more than 3 decades, learned counsel for the Petitioner referred to the judgment of the Hon'ble Supreme Court of India in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors. reported in AIR 2006 SC 1806; State of Karnataka & Ors. v. M.L. Keshari & Ors. reported in AIR 2010 SC 2587. He has also relied upon the latest judgment of the Hon'ble Supreme Court in Jaggo v. Union of India & Ors., decided in SLP(C) No.5580 of 2024 vide judgment dated 20.12.2024 as well as in Shripal & Anr. v. Nagar Nigam, Ghaziabad, decided in Civil Appeal No.8157 of 2024 vide judgment dated 31.01.2025 as well as the judgment of this bench Page 19 of 40 in Sitaram Behera v. State of Odisha & Ors. (in W.P.(C) No.8236 of 2024 decided vide judgment dated 16.05.2025).
22. Learned Addl. Govt. Advocate on the other hand contended that pursuant to the earlier order passed by this Court in W.P.(C) No.36924 of 2023, the Petitioner submitted a detailed representation to the Opposite Party No.1 on 24.11.2023 at Annexure-16 to the writ application. Learned Addl. Govt. Advocate further submitted that the Opposite Party No.1 vide order No.16926 dated 06.07.2024 at Annexure-17 rejected the prayer of the Petitioner by passing a speaking and reasoned order. Referring to order dated 06.07.2024 at Annexure-17, learned Addl. Govt. Advocate further submitted that the case of the Petitioner was duly considered on the basis of the factual background of the Petitioner's case. On close scrutiny the Opposite Party No.1 found that the Petitioner was not serving during the period in respect of which the Validation Act, 1993 was enacted. Moreover, no Validation Act has been enacted to regularize the service of Assistant Surgeons working on ad-hoc basis against the post of OMHS Cadre and that such post are being filled up regularly on the recommendation of the Odisha Public Service Commission. Page 20 of 40
23. Learned Addl. Govt. Advocate, in reply to the Petitioner's allegation that some of the Assistant Surgeons have been regularized in the meantime in the year 2015 as well as in the year 2023, contended that the regularization of 8 contractual Dental Surgeons has been made vide Resolution dated 16.01.2015 with the concurrence of the GA & PG Dept. and Law Dept. and, that the same is based on the fact that there are no specific rules governing the recruitment to the post of Dental Surgeon. Thus, the Opposite Parties have accepted the fact that in the absence of any recruitment rules the appointment of Dental Surgeon, although on ad-hoc basis, cannot be construed to have fallen short of legality. By adopting the same analogy 5 posts of Dental Surgeons were regularized vide notification dated 09.01.2023 with the concurrence of the GA & PG Dept. and Law Dept. Learned counsel for the State further emphasized that in case of regularization of the Petitioner's service, the Finance Dept. has observed that the Validation Act is applicable to those cases where appointment has not been made in violation of recruitment procedure and that in the instant case, the Doctor has been appointed on contractual basis in violation of the existing rules. In addition to the above opinion, the Finance Dept., Govt. of Odisha Page 21 of 40 has further observed that condonation of break period will arise between two regular services and not between two contractual services. Thus, the regularization of the services of the Petitioner could not be materialized. On the aforesaid ground, learned Addl. Govt. Advocate contended that the direction of this Court in the earlier writ application having been duly complied with by the Opposite Party No.1 and that the Petitioner having not found to be eligible for regularization of his service, the Opposite Party No.1 has not committed any illegality in rejecting his representation vide order dated 06.07.2024 at Annexure-17. In such view of the matter, learned Addl. Govt. Advocate further contended that the present writ application being devoid of merit, is liable to be dismissed.
24. Having heard the learned counsels appearing for the parties, on a careful analysis of their submissions, further taking note of the pleadings of the respective parties as well as the documents filed from both sides, this Court is of the considered view that so far as the factual background of the Writ application is concerned, there is not much of a difference between the version forwarded by both the sides. Thus, the admitted fact is that the Petitioner was initially appointed as Assistant Surgeon on ad-hoc Page 22 of 40 basis vide notification dated 18.12.1992 and, accordingly, he was posted at PHC (N) Mankadakenda under CHC Khunta, Dist. Mayurbhanj. The Petitioner worked there as an Ad-hoc Assistant Surgeon w.e.f. 23.12.1992 to 31.12.1999. Thereafter, the Petitioner was engaged on contractual basis w.e.f. 02.01.2000 till the present date with a break in service on 01.01.2000 and another from 31.03.2001 to 20.09.2001. It is also a fact that the case of the Petitioner is not covered under the Validation Act, 1993. Even assuming that the case of the Petitioner is covered under the 1993 Validation Act, the Petitioner would not be benefited much as the said Validation Act has been held to be ultra vires by this Court, which was eventually affirmed by the Hon'ble Apex court. Now, therefore, the questions that arise before this Court for adjudication are, firstly, whether the decision taken by the Opposite Party No.1 vide order dated 06.07.2024 at Annexure-1 is valid or not? Secondly, whether the service of the Petitioner could be regularized taking into consideration the fact that he had rendered more than 3 decades of service as an Assistant Surgeon? Thirdly, whether the Petitioner is entitled to consequential, financial and service benefits?
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25. With regard to the first question that has been formulated by this Court, this Court observes that the same is inter-connected with the question No.2 formulated by this Court i.e. in the event this Court holds that the service of the Petitioner should have regularized as per law and the judgment of this Court as well as the Hon'ble Apex Court, then obviously the impugned order dated 06.07.2024 would fall apart and, as a necessary corollary, the impugned order at Annexure-17 is to be quashed.
26. As has been stated in the preceding paragraphs. there is not much dispute with regard to the initial appointment of the petitioner on ad-hoc basis as an Assistant Surgeon. The document at Annexure-1 to the Writ application, which is a notification of the Govt. of Odisha, H & FW Deptt. dated 18.12.1992, reveals that the Petitioner was appointed as an Assistant Surgeon in the State Medical & Health Services Cadre on ad-hoc basis for a period of 6 months or till the recommendation of the OPSC for appointment of Regular Assistant Surgeon is received. Although the initial appointment order reveals that such appointment was temporary and terminable at any time without prior notice. On the basis of the aforesaid notification of the Government, the Petitioner joined in government service. It is also evident from Page 24 of 40 record that the Petitioner continued in his service, initially on ad- hoc basis, thereafter on contractual basis w.e.f. 02.01.2000 till now as an Assistant Surgeon and, that he has been discharging his duties for more than 3 decades. The record further reveals that twice attempts were made by the State-Opposite Parties to consider the case of the Petitioner for regularization of his service along with similarly situated other doctors. Such facts have been discussed elaborately in the body of the judgment. Therefore, the same need not be repeated here again. On examination, the disputed facts reveal that although the recommendations were sought for from the government seeking service particulars of doctors, including the present Petitioner for regularization of their service of Dental Surgeons, the case of the petitioner was never considered for regularization. Although the Petitioner approached the Opposite parties on several occasions by filing representations, the same was not attended to by the Opposite Parties for which the Petitioner was constrained to approach this Court earlier by filing W.P.(C) No.36924 of 2023 which was disposed of by this Bench only on 17.11.2023 with a specific direction to the Opposite Party No.1 to consider the case of the Petitioner for regularization. Although the Petitioner approached the Opposite Party No.1 with Page 25 of 40 a copy of order dated 17.11.2023, the Opposite Party No.1 rejected the prayer of the Petitioner vide order dated 06.07.2024 at Annexure-17 to the writ application. The impugned order No.16926 dated 06.07.2024 reveals that the claim of the Petitioner was rejected on the following grounds:-
I) That the Petitioner is not covered under the Validation Act, 1993 as he was not appointed in between 1982 to 1988 with the recommendation of the OPSC.
II) The Petitioner was not serving during the period for which the Validation Act, 1993 was enacted.
III) Regularization of 8 contractual Dental Surgeons in the year, 2015, has been made vide Resolution dated 16.01.2015 with the concurrence of the GA&PG Dept. and Law Dept. and on the basis of the fact that no specific rule governs the recruitment to the post of Dental Surgeon. Similar analogy was adopted while regularizing the service of 5 Dental Surgeons vide notification dated 09.01.2023.
IV) Finally, in view of the observation of the Finance Dept. that the Validation Act is applicable in a case where appointment has been made in violation of the recruitment procedure and, in the Page 26 of 40 instant case, the appointment has been made in violation of the existing rules.
V) Lastly, the break period in service cannot be condoned as the same is permissible only in case of the break that arises between two regular services and not between two contractual services.
27. On a critical analysis of the rejection order dated 06.07.2024 at Annexure-17, this Court observes that the finding with regard to the fact that the Petitioner is not covered under the Validation Act, 1993 is correct and the same remains unassailable. So far as the prayer of the Petitioner for regularization of his service on the basis of the fact that he was initially appointed on 18.12.1992 and has rendered service as an Assistant Surgeon uninterruptedly and without any blemish for more than 3 decades, this Court is of the view that the same has not been appreciated by the Opposite Party No.1 in its proper prospective. While considering such prayer, the Opposite Party No.1 was duty bound take note of the judgments rendered by the Hon'ble Supreme Court as well as this Court with regard to regularization of service of govt. employees who have been engaged and continued on ad- hoc/ contractual basis for several decades.
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28. In its entire pleading, the Opposite Parties have nowhere pleaded that the Petitioner was not eligible for appointment as an Assistant Surgeon as he was not having requisite degree/ qualification for such appointment. Moreover, nowhere it has been stated that there was any allegation against the Petitioner while discharging his duties. Also, it is clearly evident from the pleading in para-11 of the Counter affidavit that despite the Opposite Parties being fully aware of the judgment of this Court striking down the Validation Act, 1993, which was upheld by the Hon'ble Supreme Court way back in the year 2004, the Opposite Parties continued to engage the Petitioner in service as an Assistant Surgeon. It is worthwhile to mention here that the petitioner was posted in a pre-dominantly tribal area of the state, namely, Mayurbhanj district of Odisha and he was rendering service as an Assistant Surgeon to the needy people at far and remote places by attending the PHCs/ CHCs. Moreover, after the Validation Act, 1993 was struck down, no steps were taken to either terminate the service of the Petitioner or to engage a doctor in the State Medical and Health Services Cadre through the OPSC. Records further reveal that the Petitioner's name was considered and his service particulars were called for by the government on a couple of Page 28 of 40 occasions. However, the same was not considered by the State- Opposite Parties while regularizing the service of persons who are juniors to the Petitioner by a considerable extent and were working as Dental Surgeons. In this regard, an instance has been given by the Petitioner that one such Dental Surgeon, who had rendered only 23 days of service, has his service regularized and such fact has not been disputed by the Opposite Parties in their counter affidavit. Finally, after expiry of more than 3 decades, the prayer of the Petitioner for regularization was rejected by virtue of the impugned order dated 06.07.2024 at Annexure-17.
29. The grounds of rejection as indicated in the rejection order dated 06.07.2024 have been crystalized in the preceding paragraphs. Such rejection order has not taken into consideration the long and uninterrupted service rendered by the Petitioner as an Assistant Surgeon spanning over 3 decades. In the aforesaid context, this Court would like to refer to the judgments of the Hon'ble Supreme Court in Umadevi's case (supra). To understand the true impact of the judgment of the Hon'ble Supreme Court in Umadevi's case (supra), this Court would like to observe by taking note of the latest judgment of the Hon'ble Supreme Court in Jaggo's case (supra) as well as Shripal's case (supra) wherein Page 29 of 40 it has been categorically held by the Hon'ble Supreme Court that the State-authorities always use the judgment in Umadevi's case (supra) as a shield to protect their illegal conduct and unfair treatment of the workforce and that no explanation is coming forth from the State side as to whether the one time measure as suggested in Umadevi's case (supra) has been followed or not. Ignoring the mandate in Umadevi's case (supra), the State- authorities are continuing with the practice of contractual or outsource engagement for a long time spanning over decades. Such conduct is being defended by citing in Umadevi's case.
30. To understand the true sense of the dictum of the Hon'ble Supreme Court in Umadevi's case (supra), this Court would like to refer to the observation of the Hon'ble Supreme Court of India in its latest judgment in Jaggo's (supra);
"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, continuous, and unblemished service Page 30 of 40 performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent judgment of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgment have been reproduced below:
"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 involving written 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 the 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 Page 31 of 40 regular appointments such as conduct of written examinations or interviews as in the present case..."
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades."
31. Similarly, in Shripal's case (supra), the Hon'ble Supreme Court has made the following observations:-
"14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Page 32 of 40 Uma Devi itself distinguishes between appointments that are "illegal" and those that are "irregular", the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices."
32. Another important observation of the Hon'ble Supreme Court in Jaggo's case (supra) which requires a special mention at this stage is as follows:-
"16. The appellants' consistent performance over their long tenures further solidifies their claim for regularization. At no point during their engagement did the respondents raise any issues regarding their competence or performance. On the contrary, their services were extended repeatedly over the years, and their remuneration, though minimal, was incrementally increased which was an implicit acknowledgment of their satisfactory performance. The respondents' belated plea of alleged unsatisfactory service appears to be an afterthought and lacks credibility.
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 Page 33 of 40 practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an ever 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.
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, they contributing to the overall betterment of labour practices in the country."
33. Reverting to the judgment of the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, the Constitution Bench of the Hon'ble Supreme Court of India while unanimously speaking through Justice P.K. Balasubramanyan (as he then was) have also taken note of the cases where the appointments were merely "irregular" and not Page 34 of 40 "illegal" and, as such, they had provided for a mechanism in para 53 of the judgment which is quoted hereinbelow:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa11, R.N. Nanjundappa12 and B.N. Nagarajan8 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. In that context, the Union of India, the State 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 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."
34. Keeping in view the principle laid down by the Constitution Bench of the Hon'ble Supreme Court of India in Page 35 of 40 Uma Devi's case (supra), particularly, in para 53, this Court would now examine the factual background of the present case. Indisputably, the Petitioner was initially engaged in the year 1992 on ad-hoc basis. Thereafter, he was continuing on contractual basis w.e.f. 02.01.2000. Initially the recruitment of the Petitioner was by virtue of a government notification, although the same was without the concurrence of the OPSC, which is one of the requirements in the recruitment rules. Thus, at best it can be said that the initial recruitment of the Petitioner was "irregular" and was not completely "illegal". Moreover, by the time the judgment in Uma Devi's case (supra) was delivered on 10.04.2006, the Petitioner had completed 10 years of service on being appointed irregularly. Therefore, the case of the Petitioner meets the requirement of para 53 of the judgment in Umadevi's case (supra) as he had completed 10 years of service as on the date of the judgment i.e. 10.04.2006. In furtherance of the direction contained in para 53, the State-Opposite Parties should have carried out the exercise of regularization of service of such ad-hoc/ contractual employees as a one-time measure. However, there is nothing on record to conclusively prove that any such exercise was ever carried out by the State-Opposite Parties as a one-time measure. Page 36 of 40 Additionally, there is no dispute with regard to the fact that the Petitioner was performing his duties against a sanctioned post and that the continuance of the Petitioner for more than 3 decades was without any intervention by any Constitutional Court or Tribunal. Thus, the principle laid down in para 53 in Umadevi's case (supra) squarely applies to the instant case of the Petitioner. As such, as a one-time measure, the case of the Petitioner should have been considered and he should have been regularized against the post of Assistant Surgeon. Although records reveal that an attempt was made in the year 2015 and 2023 by regularizing some of the ad- hoc Dental Surgeons, the case of the Petitioner was never considered. Moreover, there is nothing on record that the vacant post against which the Petitioner was working was ever filled up by the candidates who were recommended by the Odisha Public Service Commission.
35. In view of the aforesaid analysis of law, this Court has no hesitation in coming to a conclusion that the case of the Petitioner is squarely covered by the direction of the Constitution Bench in Umadevi's case (supra). Thus, it is further held that the Opposite Parties have failed to carry out the exercise as directed in para 53 of the Umadevi's case (supra). Therefore, this Court has no Page 37 of 40 hesitation to hold that the case of the Petitioner should have been regularized as a one-time measure pursuant to the direction contained in para 53 of the Umadevi's case (supra).
36. Coming back to the law laid by the Hon'ble Supreme Court in its recent judgments in Jaggo's case (supra) as well as in Shripal's case (supra), this Court had an occasion to analyse both the aforesaid judgments in its pronouncement in Sitaram Behera Vs. State of Odisha & Ors. bearing W.P.(C) No.8236 of 2024 decided vide judgment dated 16.05.2025. In Sitaram Behera's case (supra), after taking note of the observation of the Hon'ble Supreme Court in Jaggo's case (supra) as well as in Shripal's case (supra) this Court had given a direction for regularization of service of the Petitioner in the said case.
37. In view of the aforesaid analysis, this Court is of the considered view that the Opposite Party No.1 has committed an illegality by rejecting the prayer of the Petitioner vide order dated 06.07.2024 at Annexure-17 to the writ application. Accordingly, the impugned order dated 06.07.2024 at Annexure-17 is hereby quashed. Moreover, the grounds on which the prayer for regularization has been rejected are found to be unsustainable in law in view the fact that the Petitioner has rendered service Page 38 of 40 uninterruptedly as an Assistant Surgeon in a remote area of the State for more than 3 decades. This answers the first two questions formulated by this Court. With regard to the relief claimed by the present Petitioner, this Court is of the view that since an exercise was conducted to consider the case of ad-hoc/ contractual employees for regularization of their services pursuant to letter dated 24.04.2013 at Annexure-6 and necessary compliance was made with the letter of the Director of Health Services, Odisha at Annexure-6 by the CDMO, Mayurbhanj vide his letter dated 14.05.2013 at Annexure-7 strongly recommending the case of the Petitioner on the basis of the fact that the Petitioner had rendered for more than 19 years of service in rural & difficult areas of a tribal district and at the relevant point of time was continuing as a Contractual MO at Kostha CHC and while such recommendation was rejected, the Opposite Parties have regularized the service of 8 persons vide Resolution dated 16.01.2015 at Annexure-8, this Court is of the view that the case of the Petitioner should have been considered along with those 8 candidates as per Resolution at Annexure-8 dated 16.01.2015. Lastly, in order to uphold the ends of justice, this Court observes that the service of the Petitioner ought to be regularized against an ex-cadre post w.e.f. 16.01.2015. Page 39 of 40
Accordingly, a direction is given to the Opposite Party No.1 to regularize the service of the Petitioner w.e.f. 16.01.2015 in an ex- cadre post of Assistant Surgeon with all necessary consequential, financial and service benefits, within a period of three months from the date of this judgment.
38. With the aforesaid observations/ directions, the writ application stands allowed. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 10th September, 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-Sep-2025 18:04:16 Page 40 of 40