Orissa High Court
Unknown vs W.P.(C) No.24545 Of 2021 Page 2 Of 82 on 16 August, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.24545 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Bijay Kishore Nath
Aged 51 years
Son of Lachhman Nath
Driver, Office of DCCT (Enf.) Range
Balasore.
2. Prakash Khatua
Aged about 44 years
Son of Jugal Kishore Khatua
Driver, Office of ACCT, Boudh Circle
Boudh.
3. Dillip Kumar Biswal
Aged 53 years
Son of Late Narasingha Biswal
Driver, Office of Addl. CCT, Cuttack-I Range
Cuttack.
4. Chitta Ranjan Sahoo
Aged 44 years
Son of Debendranath Sahoo
Driver, Office of DCCT,
Bhubaneswar Circle-III, Khorda.
5. Kailash Chandra Swain
Aged 41 years
Son of Late Padmanav Swain
Driver,
Office of Commissioner of Commercial Tax
& Goods and Service Tax, Odisha, Cuttack.
W.P.(C) No.24545 of 2021 Page 1 of 82
6. Jayanta Kumar Bastia
Aged 45 years
Son of Ghanasyama Bastia
Driver, Office of DCCT, Paradip Range
Jagatsinghpur.
7. Haladhar Mohapatra
Aged 45 years
Son of Late Nityananda Mohapatra
Driver, Office of DCCT, Dhenkanal Circle
Dhenkanal.
8. Krupasindhu Mohapatra
Aged 41 years
Son of Late Arjun Mohapatra
Driver, Office of DCCT, Jatni Circle
Jatni, District: Khordha.
9. Uma Sankar Mohapatra
Aged 40 years
Son of Laxmi Ch. Mohapatra
Driver
Office of Commissioner of Commercial Tax
& Goods and Service Tax, Odisha, Cuttack.
10. Sarat Kumar Gouda
Aged 50 years
Son of Hari Gouda, Driver
Office of ACCT, Ganjam Range
Berhampur, Ganjam.
11. Biswajit Parida
Aged 44 years
Son of Laxman Parida, Driver
Office of Commissioner of Commercial Tax
& Goods and Service Tax
Odisha, Cuttack. ... Petitioners.
-VERSUS-
W.P.(C) No.24545 of 2021 Page 2 of 82
1. State of Odisha
Represented through
Principal Secretary
Finance Department
Odisha Secretariat
Bhubaneswar, Khordha.
2. Commissioner of Commercial Tax
& Goods and Service Tax,
Odisha, Banijyakar Bhawan
Cuttack ... Opposite parties.
Counsel appeared for the parties:
For the Petitioners : M/s. Bhabani Sankar Tripathy-1,
Atul Tripathy and Amit Sahoo,
Advocates
For the Opposite parties : M/s. Sailaza Nandan Das and
Tarun Patnaik,
Additional Standing Counsel
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 25.07.2024 :: Date of Judgment : 16.08.2024
J UDGMENT
MURAHARI SRI RAMAN, J.--
The petitioners, drivers of the Head Office and the
different Ranges and Circles under the Commissionerate
of Commercial Tax & Goods and Service Tax, laid
challenge against Order No.1245-SMNG-HC-
51/2020/CT&GST, dated 07.08.2021 of the
W.P.(C) No.24545 of 2021 Page 3 of 82
Commissioner of Commercial Tax & Goods and Service
Tax, Odisha, Cuttack, in refusing to regularise their
contractual service against sanctioned post by way of
filing the instant writ petition under Article 226/227 of
the Constitution of India with the following prayer(s):
"On the facts and in the circumstances stated above, your
petitioners, therefore, pray that this Hon'ble Court be
pleased to;
i) quash the impugned Order No.1245 dated
07.08.2021 of the opposite party No.2 in Annexure-
17 by holding the same as illegal and bad in law
and thereby;
ii) direct the opposite party No.2 to forthwith issue
formal orders in favour of the petitioners regularizing
their services as Drivers in its various
establishments with effect from the date of their
completing six years of contractual services in the
scale of pay PB-1-Rs.5,200-20,200/- + GP Rs.1900/-
with usual allowances admissible from time to time
as per General Administration Department
Resolution dated 17.09.2013 and in the same
manner as has been allowed to similarly situated
contractual Drivers and employees in Annexure-13
Series and as per the law laid down by the Apex
Court in the case of State of Karnataka Vrs.
Umadevi (3), reported in (2006) 4 SCC 1, State of
Karnataka Vrs. M.L. Kesari, reported in (2010) 9
SCC 247 and all subsequent similar judgments;
iii) pass such other order(s) as deemed fit and proper in
the bona fide interest of justice and fair play and;
W.P.(C) No.24545 of 2021 Page 4 of 82
iv) for which act of your kindness, petitioners shall as
in duty bound, ever pray."
Facts:
2. Facts as unfurled by the writ petitioners, the following
contours of service records are revealed:
Petitioner No.1:
i. He had applied for the post of Driver created in
Finance Department Letter No.4329, dated
0l.02.2008 in lieu of one vacant post of Junior
Clerk in Sundergarh Range in the Office of
Assistant Commissioner of Commercial Tax
(Enforcement Range), Balasore on contractual basis
at a consolidated salary of Rs.3,000/- per month
through his application dated 11.12.2009.
ii. He appeared before the Selection Committee held
on 22.12.2009 in the Office of the Deputy
Commissioner of Commercial Tax, Enforcement
Range, Balasore and stood first in the merit list.
Thereafter, on the recommendation of the Selection
Committee, the petitioner was given appointment
as Driver on contractual basis for a period of one
year on a consolidated remuneration of Rs.3,000/-
per only as per Finance Department Memo
No.32986, dated 07.07.2008 in the Office of the
Deputy Commissioner of Commercial Tax,
Enforcement Range, Balasore vide Office Order
W.P.(C) No.24545 of 2021 Page 5 of 82
No.491 dated 30.12.2009. Having joined the post
on 31.12.2009, he has been continuing as such till
date.
Petitioner No.2:
i. He was selected in the selection process initiated
for filling up of one post of Driver in Office of
Commercial Tax Officer, Boudh Circle out of 12
posts of Drivers created by Finance Department
vide Letter No.4331, dated 0l.02.2008 for its
different Circle Offices, and was appointed vide
Order No.1122 dated 22.05.2013 of the Joint
Commissioner of Commercial Tax, Sambalpur
Range with consolidated remuneration of
Rs.5,200/- per month upto the period ending
28.02.2014. Having joined the Office of Assistant
Commissioner of Commercial Tax, Boudh Circle on
24.05.2013, he has been continuing as such till
date on annual extension basis.
Petitioner No.3
i. He was initially engaged as Driver on Daily Wage
basis in the Office of Assistant Commissioner of
Commercial Tax, Bhanjanagar Unit since August,
2008.
ii. Thereafter he was engaged on contractual basis
against the post sanctioned by Finance Department
W.P.(C) No.24545 of 2021 Page 6 of 82
with a consolidated monthly remuneration of
Rs.3,050/- and he was posted vide Office Order
No.634, dated 19.02.2010 of Joint Commissioner
Commercial Tax, Ganjam Range, Berhampur until
28.02.2010. Thereafter, the Joint Commissioner of
Commercial Tax, Ganjam Range, Berhampur
issued Office Order No.639, dated 19.02.2010
posting him in the Office of Assistant
Commissioner of Commercial Tax, Phulbani Circle
and accordingly, he had joined on 22.02.2010 and
continued there upto 02.06.2015 and thereafter he
was deputed to Office of Deputy Commissioner of
Commercial Tax (Vigilance), Berhampur Division.
Subsequently, he was deputed to work in the Office
of opposite party No.2 at Cuttack, where he is
continued till date at Cuttack-I Range, Cuttack on
his redeployment vide Office Order dated
30.11.2016. He has been continuing as such till
date on annual extension basis.
Petitioner No.4:
i. He was selected by Selection Committee constituted
by the Assistant Commissioner of Commercial Tax,
Puri Range, Bhubaneswar for one post of Driver for
Commercial Tax Officer, Bhubaneswar-III Circle out
of 12 contractual Driver posts created by the
Government of Odisha in Finance Department vide
Letter No.4331 dated 01.02.2008 with a
W.P.(C) No.24545 of 2021 Page 7 of 82
consolidated salary of Rs.3,000/- per month.
Finally, the Assistant Commissioner of Commercial
Tax, Puri Range in Office Order No.561 dated
27.03.2008 communicated the order of
appointment of the petitioner No.4 appointing him
as Driver on consolidated salary on contractual
basis upto end of February, 2009 as per the terms
and conditions of Finance Department Circular
dated 31.12.2004 and posted him in the Office of
Commercial Tax Officer, Bhubaneswar Circle-Ill. He
had joined the post on 01.04.2008. His contractual
engagement has further been extended from time to
time annually.
Petitioner No.5:
i. He was selected by Selection Committee constituted
by the Assistant Commissioner of Commercial Tax,
Puri Range, Bhubaneswar for one post of Driver for
Commercial Tax Officer, Bhubaneswar-III Circle out
of 12 contractual Driver posts created by
Government of Odisha in Finance Department vide
Letter No.4331 dt.01.02.2008 with a consolidated
salary of Rs.3,000/- per month. Finally the
Assistant Commissioner of Commercial Tax, Puri
Range in Office Order No.557 dated 27.03.2008
communicated the order of appointment appointing
him as Driver on consolidated salary on contractual
basis upto end of February, 2009 as per the terms
W.P.(C) No.24545 of 2021 Page 8 of 82
and conditions of Finance Department Circular
dated 31.12.2004 and posted him in the Office of
Commercial Tax Officer, Bhubaneswar Circle-IV.
He had joined his post on 01.04.2008. His
contractual engagement has further been extended
from time to time on annual extension basis.
Petitioner No.6
i. In accordance with Finance Department
Notification dated 31.03.2008 and Office Order
dated 31.03.2008 of opposite party No.2, he was
appointed as Driver on contractual basis with a
consolidated monthly remuneration of Rs.3,050/-
per month and was posted to the Office of Joint
Commissioner of Commercial Tax, Angul Range
vide Office Order No. 1861 dated 07.12.2009 of the
Joint Commissioner of Commercial Tax, Angul,
where he joined on 07.12.2009 and thereafter he
was transferred to the Office of Deputy
Commissioner of Commercial Tax, Keonjhar Circle
vide Office Order dated 29.08.2016 and he joined
on 01.09.2016. His contractual engagement has
further been extended from time to time annually.
Petitioner No.7
i. He was selected against one post of contractual
driver for Dhenkanal Circle Office out 12 posts of
contractual Drivers created vide Finance
W.P.(C) No.24545 of 2021 Page 9 of 82
Department Letter No.4331 dt.Ol.02.2008 for
different Commercial Tax Circle Offices at a
consolidated salary of Rs.3,000/- per month.
Thereafter, in accordance with Finance Department
Notification No.14744/F dated 31.03.2008 and
Office Order No.754 dated 31.03.2008 of the
Commissioner of Commercial Tax, Odisha he was
given appointment as Driver on consolidated salary
of Rs.3050 per month on contractual basis upto
end of February, 2010 and he was posted in the
Office of Assistant Commissioner of Commercial
Tax, Dhenkanal Circle vide order communicate
through Memo.No.469 dated 25.02.2009 of Joint
Commissioner of Commercial Tax, Angul Range. He
had joined the post on 01.03.2009. His contractual
engagement has further been extended from time to
time annually.
Petitioner No.8
i. He was selected through selection made by
Assistant Commissioner of Commercial Tax, Puri
Range against one post of contractual driver for
Puri Range out 12 posts of contractual Drivers
created vide Finance Department Letter No.4331,
dated 01.02.2008 for different Commercial Tax
Circle Offices at a consolidated salary of Rs.3,000/-
per month. Finally, the Assistant Commissioner of
Commercial Tax, Puri Range in his Office Order
W.P.(C) No.24545 of 2021 Page 10 of 82
dated 27.03.2008 communicated the order of
appointment appointing him as Driver on
consolidated salary on contractual basis upto end
of February, 2009 as per the terms and conditions
of Finance Department Circular dated 31.12.2004
and posted him in the Office of Commercial Tax
Officer, Nayagarh. He had joined the post on
01.04.2008. His contractual engagement has
further been extended from time to time annually.
Petitioner No.9
i. He was employed as Driver on DLR Basis in the
Office of Deputy Commissioner of Commercial Tax,
Enforcement Range with effect from 25.01.2007.
While continuing as such, the petitioner
participated for being appointed as contractual
Driver and upon facing the selection and Driving
Test and in pursuance to the Finance Department
Order dated 02.06.2008, he was provisionally
appointed as Driver on contractual basis with a
consolidated remuneration of Rs.3,050/- per
month until 28.02.2010 vide Office Order No.11590
dated 23.06.2009 of the opposite party No.2.
Subsequently, he was posted as contractual Driver
in the Office of opposite party No.2 vide Order No.
11609 dated 23.06.2009. On and from the date of
his joining on 23.06.2009, he has been continuing
as such till date on yearly extension basis.
W.P.(C) No.24545 of 2021 Page 11 of 82
Petitioner No.10:
i. The Joint Commissioner of Commercial Taxes,
Ganjam Range, Berhampur published Notice on
10.01.2013 in the Office Notice Board inviting
applications from outsiders for filling up of one post
of Driver on contractual engagement basis at
Assessment Unit, Rambha, which post was out of
12 posts of Drivers created vide Finance
Department letter No.4331 dt.Ol.02.2008. As per
the aforesaid Notice, he faced the interview held on
11.01.2013 by the Selection Committee and on
being provisionally selected, he was engaged as
driver vide Office Order No. 105 dated 11.01.2013
of the Joint Commissioner of Commercial Tax,
Ganjam Range, Berhampur for the post of Driver
with consolidated remuneration of Rs.5,200/- per
month from the date of his joining till 28.02.2013.
Based on the engagement Order dated 11.01.2013,
he joined on 14.01.2013 by submitting his joining
report before the Commercial Tax Office,
Assessment Unit, Rambha.
Petitioner No.11:
i. He joined the post of Driver on daily wage basis on
13.03.2008 and was posted to the Office of
Commercial Tax Officer, Cuttack-I East Circle,
Cuttack based on his selection made by the
W.P.(C) No.24545 of 2021 Page 12 of 82
opposite party No.2. At that stage a single post of
Driver in Cuttack-I, East Circle was created vide
Finance Department Order No.28143 dated
02.06.2008 and permission was given to the
opposite party No.2 vide Department Letter dated
29.08.2009 and Letter No.40545 dated 20.08.2009
to conduct selection to the said post, based on
which the opposite party No.2 in Memo No.68/CT
dated 03.01.2009 directed selection to the said post
of Driver. In the said selection finally the petitioner
was selected and was given appointment on
contractual basis on a consolidated salary of
Rs.5,200/- per month vide Memo No.4455, dated
24.09.2010 of Deputy Commissioner of Commercial
Tax, Cuttack-I East Circle. Based on the said Office
Order, the petitioner joined on 01.10.2010 and has
been continuing as such on annual extension basis
till date.
2.1. All these petitioners claimed to have been continuing to
serve as drivers on contractual basis with unblemished
outstanding service career till date.
Submissions of counsel for the respective parties:
3. In the aforesaid background of engagement of drivers in
the Commercial Tax & Goods and Service Tax
Organisation, Sri Bhabani Sankar Tripathy, learned
Advocate proceeded to place the material before this
W.P.(C) No.24545 of 2021 Page 13 of 82
Court that during continuance of the petitioners in their
respective offices, Government of Odisha promulgated a
policy for regularization of services of existing
contractual Group-C and Group-D employees working
under the State Government vide General
Administration Department Resolution No.26108/Gen.,
dated 17.09.2013. According to the said Resolution, on
the date of satisfactory completion of six years of
contractual service or from the date of publication of the
Resolution, whichever is later, they shall be deemed to
have been regularly appointed and a formal order of
regular appointment shall be issued by the appointing
authority.
3.1. Subsequently Government of Odisha in General
Administration Department issued another Resolution
on 16.01.2014 expressly clarifying earlier Resolution
dated 17.09.2013 that proposal for regularization of
contractual appointments/engagements as per the
Resolution dated 17.09.2013 shall be considered and
approved by the High Power Committee to be constituted
under the Chairmanship of the concerned Department.
3.2. Sri Bhabani Sankar Tripathy, learned Advocate further
submitted that apprehending disengagement of their
contractual services because of the restrictions imposed
by the Finance Department Memorandum dated
07.07.2020 due to Covid-19 pandemic and keeping in
view the orders passed by this Court for regularization of
W.P.(C) No.24545 of 2021 Page 14 of 82
similarly situated other contractual employees, the
petitioners approached this Court in W.P.(C) No.22689 of
2020, which was disposed of on 10.09.2020, whereby
this Court in Single Bench passed the following Order:
"The petitioners have filed this application seeking for a
direction to the opposite parties to regularize their services
taking into account their continuous service of more than
12 years, as has been done in favour of the other
similarly situated persons as per Government Circular
and in terms of the principle decided in Secretary State of
Karnataka and Others Vrs. Umadevi (3) and Others
(2006) 4 SCC 1 and in State of Karnataka & Others Vrs.
M.L. Kesari & Others involving SLP(C) No.15774/2006
[reported at (2010) 9 SCC 247].
Learned counsel for the petitioners submits that the
petitioners were engaged on DLR basis. They have
already rendered more than 12 years of service under the
opposite party and therefore, seeks for regularization of
services in view of the judgment passed by the Hon'ble
apex Court in Secretary, State of Karnataka and Others
Vrs. Umadevi (3) and Others (2006) 4 SCC 1 and in State
of Karnataka & Others Vrs. M.L. Kesari & Others
involving SLP(C) No.15774/2006.
Considering the contentions raised by the learned counsel
for the petitioners and after going through the records, it
appears that the petitioners have rendered service for
more than 12 years on DLR basis. Therefore, the case of
the petitioners is squarely covered by the ratio decided in
the cases cited supra.
In that view of the matter, this Court disposes of this Writ
Petition directing the opposite parties to consider the case
of the petitioners and regularize their services keeping in
W.P.(C) No.24545 of 2021 Page 15 of 82
view the judgment in the case of Secretary State of
Karnataka and others Vrs. Umadevi (3) and Others (2006)
4 SCC 1 and in State of Karnataka & Others Vrs. M.L.
Kesari & Others involving SLP(C) No.15774/2006 and
also the Resolution of the G.A. Department dated
17.09.2013, within a period of four months from the date
of communication of a copy of this order by the petitioners
and grant consequential service benefits as due
admissible to them.
It is further directed that in the event the petitioners are
still continuing in their services, status quo as on today in
respect of the services of the petitioners shall be
maintained till a decision is taken in the matter by the
opposite parties in terms of the above direction."
3.3. Since the aforesaid Order dated 10.09.2020 was not
complied with, the petitioners filed petition for initiation
of contempt giving rise to CONTC No.262 of 2021, which
came to be disposed of on 20.01.2021 requiring the
opposite parties to work out the Order dated 10.09.2020
within a period of one month.
3.4. While the matter stood thus, the opposite parties have
filed appeal being W.A. No.79 of 2021 before the Division
Bench, which came to be disposed of vide Judgment
dated 21.06.2021, with the following observations:
"***
5. However, we are of the opinion that since these
cases were disposed of on the first date of listing, a
detailed order on merit of the contentions raised by
the parties in the appellate stage for the first time
W.P.(C) No.24545 of 2021 Page 16 of 82
will not be proper and expedient in the interest of
justice.
6. Generally, an order directing the authorities to
consider the representation of a petitioner is not a
proper disposal of a writ petition. However, Courts in
India have developed this method of directing
disposal of representation because of the heavy
pendency of the cases and limited number of Courts.
7. In all these writ petitions writs of mandamus have
been issued by directing the appellants to regularise
the services of the Petitioners without affording
reasonable opportunity to the opposite parties-
appellants to file counter affidavits and without
giving a positive finding that they are entitled to be
regularized in the given facts and law applicable.
8. In that view of the matter, we hereby allow these
writ appeals in part and set aside the following
portion of the order and direction of the learned
Single Judge:
'*** and regularize their services xxx xxx xxx and
grant consequential service benefits as due
admissible to them.'
In other words, we direct the appellants to consider
the representation of the respondents in all these
cases keeping in view the settled principles of law
as stated by Hon'ble Supreme Court in the
judgments referred to above. For this purpose, the
respondents in each cases are given liberty to file
detailed representation along with duly attested
copy of this Judgment within a period of twenty one
days, which shall be considered by the authorities
keeping in view the aforesaid consideration within a
period of one month thereafter by a reasoned order
W.P.(C) No.24545 of 2021 Page 17 of 82
after affording reasonable opportunity of hearing to
the Respondents."
3.5. Sri Bhabani Sankar Tripathy, learned Advocate in
furtherance of his argument highlighted that in view of
Judgment of the Division Bench of this Court as referred
to above, the petitioners having filed representation
made the authority concerned aware of the factual
aspects for consideration of their regularisation in
service inter alia contending that:
i. The petitioners were selected through a process of
selection by facing interview by the Selection
Committee and engaged against the sanctioned
post of contractual Drivers created by Finance
Department Letters dated 01.02.2008, 31.03.2008,
02.06.2008 and 07.07.2008 and have been allowed
to continue by the opposite parties voluntarily and
uninterruptedly till date. Hence, their cases are
bound to be considered in the light of ratio of the
Judgments in Secretary State of Karnataka Vrs.
Umadevi (3), (2006) 4 SCC 1 and State of Karnataka
Vrs. M.L. Kesari, (2010) 9 SCC 247.
ii. As has been clarified by the Departmental
authorities that as there was no recruitment Rules
or executive instructions for recruitment of Drivers
in Commercial Tax Organization, process of
selection was made through advertisement as per
the instructions and the directions of the
W.P.(C) No.24545 of 2021 Page 18 of 82
Commissioner, Commercial Tax, Odisha. Having
participated in the process of selection, the
petitioners were selected and engaged.
iii. Similarly situated contractual Drivers (colleagues of
the petitioners) namely Narayan Sethi, Sarat
Kumar Sahoo and Premakanta Prusty were
regularized as per General Administration
Department Resolution dated 17.09.2013 with
retrospective effect and are extended consequential
service benefits. Furthermore, other departments
similarly circumstanced employees also got
regularised. Therefore, it was forcefully urged that
the petitioners are also entitled to similar relief for
they cannot be discriminated in a manner the
action of the authorities may attract vice of Articles
14 and 16 of the Constitution of India.
iv. Based on General Administration Department
Resolution dated 17.09.2013 various other
Departments have already regularized contractual
Group-C and Group-D employees.
v. So far as engagement of contractual posts are
concerned the Odisha Reservation of Vacancies in
Posts and Services (for Scheduled Castes and
Scheduled Tribes) Act, 1975 (for brevity, "ORV Act")
has got no application, as held by this Court in
W.P.(C) No.6661 of 2018 and upheld by the
W.P.(C) No.24545 of 2021 Page 19 of 82
Supreme Court in S.L.P.(C) No. 18642 of 2018 in
the cases pertaining to Data Entry Operators
engaged on contractual basis in the Commercial
Tax Organization.
vi. The petitioners have also relied upon recent
Judgment of the Hon'ble Supreme Court passed by
the three Judge Bench upholding similar orders of
the Hon'ble Single Judge in S.L.P.(C) No.6851 and
6868 of 2021.
3.6. Having afforded the petitioners opportunity of personal
hearing, the opposite party No.2 passed the order of
rejection of the claim of the petitioners; which led them
to approach this Court by way of the instant writ
petition.
4. Per contra relying on the counter affidavit of the opposite
party Nos.1 and 2 admitting that all the petitioners faced
interview in response to the advertisement put up on the
notice board, submitted that the authorities at the time
of engagement of these petitioners have not followed the
provisions of the ORV Act.
4.1. Be that be, laying stress on the General Administration
Department Resolution No.26108-GAD-SC-RULES-
0009-2013/Gen., dated 17.09.2013 as clarified further
in the General Administration Department Resolution
vide No.1066-GAD-SC-RULES-0009/2013/Gen., dated
16.01.2014, the Additional Standing Counsel
W.P.(C) No.24545 of 2021 Page 20 of 82
strenuously urged that the requirements stipulated
therein being not fulfilled in respect of petitioners-drivers
who joined in their respective Offices of the Commercial
Tax & Goods and Services Organisation during 2008-
2013, they are not eligible to be regularized in their
service inasmuch as the principles of Secretary, State of
Karnataka and Others Vrs. Umadevi (3) and Others
(2006) 4 SCC 1 has no application to the fact-situation of
the case.
4.2. It is asserted that in order to differentiate the nature of
contractual appointments/engagements, i.e. type of
cases deserves consideration for regular appointment, a
checklist in diagrammatic depiction consisting of all the
relevant Resolutions/Instructions/Circulars and the
legal position as set forth by the Hon'ble Supreme
Court of India in Umadevi (3), (2006)4 SCC 1 was
circulated vide General Administration Department
Letter No. 72l0(e)--GAD-SC-GCS-0169-2020/Gen, dated
03.03.2021
4.3. Since the cases of drivers have been considered in the
light of Umadevi (3), (2006) 4 SCC 1 with reference to
Resolutions and the Instruction(s), no infirmity can be
attributed to the Order dated 07.08.2021 of the
Commissioner of Commercial Tax & Goods and Services
Tax, Odisha, Cuttack, as impugned by the petitioners at
Annexure-17.
W.P.(C) No.24545 of 2021 Page 21 of 82
4.4. It has been impressed upon this Court by the learned
Additional Standing Counsel that factual aspects as
involved and the opposite parties-employer(s) having
considered the individual cases on its merits, and the
scope of judicial review being limited, the case of the
petitioners does not deserve indulgence as the Order
dated 07.08.2021 vide Annexure-17 has been passed in
consonance with the directions contained in the Order
dated 10.09.2020 passed in W.P.(C) No.22689 of 2020
(Sanatan Bal and Others Vrs. State of Odisha and Others)
as modified by virtue of the Judgment dated 21.06.2021
of this Court rendered in W.A. No.79 of 2021.
4.5. The petitioners, joined during 2008 to 2013, have been
entrusted to work as drivers on annual renewal basis.
All the eleven petitioners were not engaged by following
process of open and transparent recruitment. Such
engagement were made contrary to the eligibility criteria
envisaged in the General Administration Department
Resolution No.26108-GAD-SC-RULES-0009-2013/Gen.,
dated 17.09.2013 as clarified further in the General
Administration Department Resolution vide No.1066-
GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014.
That apart, there was non-adherence to the
requirements of the ORV Act.
4.6. Explaining further as regards claim of parity in
treatment of the petitioners vis-à-vis similarly situated
persons, who have been considered for regularization,
W.P.(C) No.24545 of 2021 Page 22 of 82
with reference to Article 14 of the Constitution of India,
the argument of the learned Additional Standing
Counsel engaged attention of this Court to the following
factual position as reflected in the counter affidavit:
"7. ***
(a) That 27 numbers of contractual drivers were
engaged in different offices of Commercial Tax
Organization against Government sanctioned posts
prior to issue of G.A. Department Resolution
No.26108/Gen,, dated l7.09.20l3. Out of them, the
contractual services of 3 (three) drivers of Cuttack-II
Range (viz. Narayan Sethi, Sarat Kumar Sahoo and
Premakanta Prusty) were regularised in pursuance
ot Finance Department Letter No. 875/F, dated
11.01.2017 as they had fulfilled all the mandatory
eligibility conditions prescribed in G.A. Department
Resolution No.26108/Gen, dated. 17.09.2013 and
Resolution No.l066/Gen, dated.16.01.2014. But the
contractual services of the remaining 24 contractual
drivers including the present Petitioners have not
been regularised since all the mandatory eligibility
conditions as prescribed in G.A. Department
Resolution No.26108/Gen, dated 17.09.2013 and
Resolution No.l066/Gen, dated 16.01.2014 have not
been fulfilled in their case.
(b) Similarly the contractual services of 2(two) Group-D
Staff of CT & GST Organization (viz. Sashikanta
Pradhan & Ramakrushna Sahoo) have also been
regularised after completion of six years service in
pursuance of Finance Department Letter No.
30226/F, dated 24.11.2015 as they were engaged
through proper recruitment procedure.
W.P.(C) No.24545 of 2021 Page 23 of 82
(c) In pursuance of Order dated 17.05.2017 of the
Odisha Administrative Tribunal passed in OA No.
2172(C) of 2015 (Jatin Kumar Das Vrs. State of
Odisha & Others) and a batch of cases, which has
been upheld by the Hon'ble High Court of Orissa
vide Order dated 10.05.2018 in W.P.(C) No. 6661 of
2018 and by the Hon'ble Supreme Court of India
vide Order dated 06.08.2018, the contractual
services of the Data Entry Operators working in the
CT & GST Organization have been regularised. But
the mode of engagement and nature of duty of the
present petitioners are quite different from that of the
Data Entry Operators.
***
10. That the Hon'ble Apex Court in the case of State of
Rajasthan and others Vrs. Dayalal and Others,
reported in (2011) 2 SCC 429 in paragraph 12
observed as follows:
'We may at the outset refer to the following well
settled principles relating to regularisation and
parity in pay, relevant in context of these appeals.
High Court in exercising the power under Article 226
of the Constitution will not issue directions for
regularisation, absorption or permanent continuance,
unless the employee claiming regularisation had
been appointed in pursuance of regular recruitment
in accordance with relevant Rules in an open
competitive process, against the sanctioned post.
The equality clause contained in article 14 and 16
should be scrupulously followed and courts should
not issue a direction for regularisation of service of
an employee which would be violative of
constitutional scheme. While something that is
irregular for want of compliance with one of the
W.P.(C) No.24545 of 2021 Page 24 of 82
elements in the process of selection which does not
go to the root of the process, can be regularised,
back door entries, appointment contrary to the
constitutional scheme and/or appointment of
ineligible candidates cannot be regularised.'
That in the instant case, though the petitioner has
been engaged against the sanctioned post but
neither proper recruitment procedure nor the
reservation principles have been followed while
engaging him. This violates the mandatory eligibility
conditionality No. (ii) & (iii) as enumerated in GA
Department Resolution No.26108/Gen, dated
17.09.2013 read with Resolution No.1066/ Gen,
dated 16.01.2014. There is no discrimination or
arbitrariness in passing the above order dated
07.08.2021, rather it is based on the Resolutions of
Government in GA Department and referral
judgments of the Hon'ble Apex Court."
4.7. Having laid emphasis on the aforesaid reply filed by way
of counter affidavit to the averments contained in the
writ petition, the learned Additional Standing Counsel
fervently urged to dismiss the writ petition.
The impugned Order of the Commissioner of Commercial
Tax & Goods and Services Tax, Odisha:
5. Having considered the representation of the petitioners
and affording opportunity of hearing to them through
their counsel in compliance of the direction of this Court
vide Judgment dated 21.06.2021 passed in W.A. No.79
of 2021, the Commissioner of Commercial Tax & Goods
and Service Tax, Odisha proceeded to reject the claim for
W.P.(C) No.24545 of 2021 Page 25 of 82
regularization of the petitioners with the following
reasons:
"6. The details of contractual engagements of the above
18 petitioners (contractual drivers) are given in the
following table:
Sl. Name and Date of Finance Mode of Whe-
No. Office joining Department engagement ther
as Letter No. reser-
contr- and date in vation
actual which princ-
driver contractual iples
posts follo-
created/ wed
permission
granted to fill
existing
vacancy
1. Sanatan Bal, 07.12.2 14760/F, Advertisement in No
Assessment 009 dtd. Office Notice
Unit, Talcher 31.03.2008 Board followed by
interview
2. Radheshyam 15.04.2 4331/F., Basing on past No
Bhoi, 011 dtd.01.02.20 experience as
Enforcement 08 daily wage driver
Range,
Bhawanipatn
a (initially
posted in
Sonepur Circle
3. Prakash 24.05.2 4331/F., Pick and choose No
Khatua, 013 dtd. manner
Boudh Circle 01.02.2008
4. Dillip Kumar 22.02.2 28143/F, Advertisement in No
Biswal, 010 dtd.02.06.20 Office Notice
Cuttack-I 08 Board followed by
Range interview
(initially
posted in
Phulbani
Circle)
5. Bijay Kishore 04.01.2 4329/ Advertisement in No
Nath, 020 F, dtd. Office Notice
Enforcement 01.02.2008 Board followed by
Range, interview
Balasore
6. Sanjeet 01.07.2 33020/F, Basing on past No
Kumar Bagh, 011 dtd. experience as
Enforcement 07.07.2008 daily wage driver
Unit, Jeypore
(initially posed
W.P.(C) No.24545 of 2021 Page 26 of 82
in Vigilance
Division,
Koraput
7. Padu Paraja, 02.09.2 4331/F, Basing on past No
Nabarangpur 009 dtd.01.02.20 experience as
Circle 08 daily wage driver
8. Chittaranjan 01.04.2 4331/F, Advertisement in No
Sahoo, 008 dtd.01.02.20 Office Notice
Bhubaneswar- 08 Board followed by
III Circle interview
9. Kailash 01.04.2 4331/ Advertisement in No
Chandra 008 F, dtd. Office Notice
Swain, 01.02.2008 Board followed by
Commissioner interview
ate of CT &
GST, Odisha,
Cuttack
(initially
posted in
Bhubaneswar-
IV Circle
10. Jayanta 07.12.2 14763/F, Advertisement in No
Kumar Bastia, 009 dtd. Office Notice
Jagatsinghpur (A.N.) 31.03.2008 Board followed by
Circle, interview
(initially
posted in
Angul Circle
11. Haladhar 26.02.2 4331/ Advertisement in No
Mohapatra, 009 F, dtd. Office Notice
Dhenkanal (A.N.) 01.02.2008 Board followed by
Circle interview
12. Krupasindhu 01.04.2 4331/F, dtd. Advertisement in No
Mohapatra, 008 01.02.2008 Office Notice
Jatni Circle Board followed by
(initially interview
posted in
Nayagarh
Circle)
13. Umasankar 27.06.2 281431/F, Pick and choose No
Mohapatra 009 dtd. manner (with
Commissioner 02.06.2008 recommendation of
ate of CT & CCT on his
GST, Odisha, application)
Cuttack
14. Dharamjit 23.05.2 4331/F, dtd. Basing on past No
Mishra, 013 01.02.2008 experience as
Enforcement daily wage driver
Range,
Sambalpur
15. Sarat Kumar 14.01.2 4331/F, dtd. Advertisement in No
Gauda, 013 01.02.2008 Office Notice
Ganjam Board followed by
Range interview
16. Tapan Kumar 29.06.2 28143/F, Pick and choose No
W.P.(C) No.24545 of 2021 Page 27 of 82
Sahoo, 009 dtd. manner (with
Commissioner 02.06.2008 recommendation of
ate of CT & CCT on his
GST, Odisha, application)
Cuttack
17. Biswajit 01.10.2 28143/F, Advertisement in No
Parida, 010 dtd. Office Notice
Commissioner 02.06.2008 Board followed by
ate of CT & interview
GST, Odisha,
Cuttack
(initially
posted in
Cuttack-I East
Circle)
18. Sunil Chandra 06.05.2 3193/F, dtd. Advertisement in No
Das, 010 15.01.2009 Office Notice
Enforcement Board followed by
Unit, Jajpur interview
Road
7. As per GA Department Resolution No.26108/Gen,
dated 17.09.2013 read with Resolution
No.1066/Gen., dated 16.01.2014, the following are
the mandatory eligibility conditionalities for
regularisation of contractual appointments/
engagements on completion of six years of
satisfactory contractual service.
(i) Contractual appointments/engagements must
have been made against contractual posts
created with concurrence of Finance
Department;
(ii) Such contractual appointments/engagements
must have been made following proper
recruitment procedure;
(iii) Principle of reservation of posts must have
been followed.
In other words, no contractual appointee shall be
eligible for regular appointment as per the aforesaid
Resolutions unless the above mandatory eligibility
conditionalities are fulfilled.
W.P.(C) No.24545 of 2021 Page 28 of 82
The above petitioners have completed contractual
services ranging from 8 to 13 years by now and
presently continuing as such on annual
extension/renewal basis subject to their satisfactory
performance. But in case of the said petitioners, the
condition stated at (i) above has been fulfilled but
the conditions stated at (ii) & (iii) above have not
been completely fulfilled for the reasons mentioned
below:
(a) Some of them have been engaged through
advertisement in Office Notice Board followed
by an interview, some others have been
engaged basing on their past services as daily
wage workers and the rest on pick and choose
manner as depicted in the preceding table. So,
as evident, proper and transparent recruitment
process has not been adopted in their
engagements.
(b) Reservation principles have not been followed
in all the cases.
So their contractual services cannot be regularised
as per GA Department Resolutions dated
17.09.2013 and dated 16.01.2014.
8. The Judgment in the Umadevi case cited supra was
delivered by the Hon'ble Supreme Court on
10.04.2006. As per the said Judgment, if
appointments have been made against sanctioned
posts and the persons so appointed possess the
educational qualification (prescribed for the post) at
the time of such appointment but the appointments
have not been made as per proper recruitment
procedure, such appointments are irregular. As an
one-time relaxation measure, the Hon'ble Supreme
W.P.(C) No.24545 of 2021 Page 29 of 82
Court have directed for regularisation of such
irregular appointees who had been continuing in
such appointment for at least 10 years as on the
date of Judgment (i.e. 10.04.2006) without
protection of any court order. Thus the ratio of
Judgment in Umadevi case shall not apply to the
contractual appointments/engagements made after
11.04.1996 and the cases of contractual
appointments/engagements which are not
continuous for 10 years as on 10.04.2006.
Since the 18 petitioners of the present Writ Petition
were engaged during the period 2008-2013, their
cases are not squarely covered by the ratio decided
in Umadevi case and as such they cannot be
regularised as per the judgment of Umadevi case.
9. The Judgment dated 03.08.2010 of the Hon'ble
Supreme Court in the M.L. Kesari case cited supra is
extension/continuation of Umadevi Judgment dated
10.04.2006. In their Judgment dated 03.08.2010 in
M.L. Kesari case, the Hon'ble Supreme Court have
directed that the persons eligible for regularisation
as per the Umadevi Judgment but left out due to
oversight or otherwise be regularised as an
extension of the one time measure decided therein.
But the M.L. Kesari Judgment speaks nothing about
new irregular appointment/engagements made after
10.04.2006. As such, the Judgment of M.L, Kesari
case is not applicable in case of the present
petitioners who have joined as Contractual Drivers
on different dates during the period 2008-2013.
***
11. Government in GA&PG Department vide their latest
Circular No. 7210(e)/Gen., dated 03.03.2021 in the
W.P.(C) No.24545 of 2021 Page 30 of 82
matter of regularisation of contractual employees
has prescribed a checklist for examination of each
case. As per the said checklist, the only option left
for consideration of regularisation of present
petitioners is to examine their cases as per
2013/2014 Resolutions of GA Department, which
requires 3 mandatory eligibility conditions contained
in the said Resolutions (mentioned in paragraph-7
above). Since proper recruitment procedure and
Principles of reservation as per ORV Rules have not
been followed during the engagement of the
petitioners, they cannot be considered for
regularisation in the post of Driver as per
Government in GA Department Resolutions of
2013/2014. There is no fundamental rights in those
who have been employed in daily wages or
temporarily or on contractual basis through pick and
choose method to claim that they have a right to be
absorbed in service. A regular appointment could be
made only by making appointments consistent with
requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with the
other employees employed contractually cannot be
extended to a claim for equal treatment with those
who were regularly employed. That would amount to
treating unequals as equals.
In view of the above, the contractual services in the
post of Driver in case of 18 petitioners of W.P.(C)
No.22689 of 2020 do not qualify for regularisation
with regular scale of pay against the sanctioned
post and hence their claim for regularisation of
contractual services is hereby rejected."
Legal perspective of regularization of contractual
employees:
W.P.(C) No.24545 of 2021 Page 31 of 82
6. With the above backdrop, before proceeding with the
matter, it is felt apposite to discuss the legal position
with respect to regularisation of service of contractual
employees as set out by different Courts.
6.1. To begin with it is apt to refer to the anxious
consideration shown by the Madras High Court in N.
Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016,
vide Judgment dated 22.04.2022 made with respect to
exploitation of service. The following benevolent
observation has been made by said Court in favour of
employees, whose services have been utilized by the
Government for a long time:
"18. If the Courts cannot give direction for their
regularisation of service, in the constrained legal
scenario what other remedies that are available to
these unfortunate employees, who have been
engaged in service for public purpose, without
having any definite future to hold on? These
petitioners cannot be kept on the tenterhooks
of their employment for years together, by
brushing aside and discarding their concerned
yearning for a definite future, with
unresponsive indifference.
19. A welfare State grounded on constitutional
values, cannot come up with apathetic and
callous stand that despite continued
employment of these petitioners for years
together, no semblance of right is available to
them. Such stand by the State is opposed to
constitutional values as enshrined in Article 21 of
W.P.(C) No.24545 of 2021 Page 32 of 82
the Constitution of India. The Courts of course have
held that equal opportunity must be provided in
public employment and entry through back door
should be discountenanced. When Article 21, being
violated by the State, action towards its servants,
the consideration of the Government must primarily
be focussed on alleviating legitimate grievances of
its employees. Even assuming that the recruitment of
these writ petitioners had not been fully in
consonance with the procedure for appointment in
Government services, the fact remained that these
persons have been consciously appointed by the
Government for implementing public projects and the
work has been extracted from them continuously for
several years. It is therefore, not open to the
Government after a period of time to turn around
and contend that these writ petitioners have no right
at all to seek any kind of guarantee for their future.
20. In the opinion of this Court, continued
employment for several years, even on a
projects meant to serve the State as a whole,
certain rights would definitely accrue to them,
atleast to the extent of making a claim for
formulation of a scheme/towards their
absorption. This Court is quite conscious of the fact
that the Government has been benevolent and had
come up with several schemes in the past and
directed regularisation of services of thousands of
employees over a period of time. Such benevolence
ought to permeate to the lowest levels to take within
its sweep the desperate cry of the petitioners as
well. As in the sublime words of the father of nation,
Mahatma Gandhi, 'A nation's greatness is measured
by how it treats its weakest members'. Merely
because these writ petitioners have been employed
W.P.(C) No.24545 of 2021 Page 33 of 82
in the projects, the policy makers may not shut their
mind and close their eyes to their precarious plight
having to serve public purpose but left in the lurch
and unprotected, at the end of the day."
6.2. Learned Single Judge of this Court in Dr. Prasana Kumar
Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005
[reported at 2016 (I) ILR-CUT 373], made the following
observation:
"7. In Binan Kumar Mohanty Vrs. Water and Land
Management Institute (WALMI), 2015 (I) OLR 347
referring to Kapila Hingorani Vrs. State of Bihar,
(2003) 6 SCC 1 the apex Court held that the
Government companies/public sector undertakings
being 'States' would be constitutionally liable to
respect life and liberty of all persons in terms of
Article 21 of the Constitution of India. Therefore, if
the petitioner has rendered service for around 20
years, keeping in view the ratio decided in Kopila
Hingorani (supra), this Court issues direction to the
opposite parties to mitigate the hardship of the
employees. Financial stringency is no ground for not
issuing requisite directions when there is violation of
fundamental rights of the petitioner. Allowing a
person to continue for a quite long period of 20 years
of service and exploiting him on the pretext of
financial crunch in violation of Article 21 of the
Constitution of India is sheer arbitrariness of the
authority which is highly condemnable.
8. In Narendra Kumar Ratha and Others Vrs. State of
Odisha and Others, 2015 (I) OLR 197, this Court has
taken into consideration the object of Article 16 of
the Constitution of India to create a constitutional
right to equality of opportunity and employment in
W.P.(C) No.24545 of 2021 Page 34 of 82
public offices. The word 'employment or
appointment' cover not merely the initial
appointment, but also other attributes like salary,
increments, revision of pay, promotion, gratuity,
leave pension and age of superannuation etc.
Appointment to any post under the State can only be
made in accordance with the provisions and
procedure envisaged under the law and guidelines
governing the field.
9. In Prabodh Verma and Others Vrs. State of U.P. and
Others, (1984) 4 SCC 251, the apex Court held that
Article 16 is an instance of the application of the
general rule of equality laid down in Article 14, with
special reference to the opportunity for appointment
and employment under the Government.
10. Similar view has also been taken by the apex Court
in Km. Neelima Mishra Vrs. Harinder Kaur Paintal
and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402
and E.P. Royappa Vrs. State of Tamil Nadu and
Another, (1974) 4 SCC 3. Clause (1) of Article 16
guarantees equality of opportunity for all citizens in
the matters of employment or appointment to any
office under the State. The very concept of equality
implies recourse to valid classification for preference
in favour of the disadvantaged classes of citizens to
improve their conditions so as to enable them to
raise themselves to positions of equality with the
more fortunate classes of citizens. This view has
also been taken note of by the apex Court in the
case of Indra Sawhney Vrs. Union of India, 1992
Supp. (3) SCC 217 = AIR 1993 SC 477."
6.3. The case of Prasana Kumar Mishra (supra) was carried in
appeal before the Division Bench, giving arise to W.A.
W.P.(C) No.24545 of 2021 Page 35 of 82
No.4 of 2016, which was dismissed vide Order dated
11.12.2019. Said matter, being carried further to the
Hon'ble Supreme Court of India, vide Order dated
07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the
behest of Biju Patnaik University of Technology, stood
dismissed.
6.4. Showing anxiety so far as regularization of services, in a
catena of decisions the Hon'ble Supreme Court of India
has succinctly and illuminatingly dealing with the
concept of regularization, in the case of Narendra Kumar
Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, has
said as follows:
"The purpose and intent of the decision in Umadevi (3)
was therefore twofold, namely, to prevent irregular or
illegal appointments in the future and secondly, to confer
a benefit on those who had been irregularly appointed in
the past. The fact that the State of Jharkhand continued
with the irregular appointments for almost a decade after
the decision in Umadevi (3) [(2006) 4 SCC 1] is a clear
indication that it believes that it was all right to continue
with irregular appointments and whenever required,
terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of exploitation
of the employees by not giving them the benefits of
regularisation and by placing the sword of
Damocles over their head. This is precisely what
Umadevi and Kesari sought to avoid."
6.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it
has been discussed as follows:
W.P.(C) No.24545 of 2021 Page 36 of 82
"12. As it appears from the record itself, the case of the
petitioner is squarely covered by the exception
carved out in paragraph 53 of the judgment
rendered in Umadevi (3) mentioned supra. Meaning
thereby, against an existing sanctioned vacancy in
the post of Barber, the petitioner having been
engaged by following due procedure of selection in
the post of Home Guard and continued for a quite
long period, which is not disputed by the opposite
parties-State as per the pleadings available in the
counter affidavit and, as such, the petitioner is still
continuing, the same cannot be treated as an 'illegal
engagement', rather it may be nomenclatured as an
'irregular engagement'.
13. In State of Jammu and Kashmir Vrs. District Bar
Association, Bandipora, MANU/SC/1566/2016 =
(2017) 3 SCC 410, wherein a distinction has been
made with regard to 'irregular' and 'illegal'
engagement, referring to the exception carved out in
Umadevi (3) mentioned supra, in paragraph 12 of
the said judgment it has been stated as follows:
'12. The third aspect of Umadevi (3) which bears
notice is the distinction between an 'irregular'
and 'illegal' appointment. While answering
the question of whether an appointment is
irregular or illegal, the Court would have
to enquire as to whether the appointment
process adopted was tainted by the vice of
non-adherence to an essential prerequisite
or is liable to be faulted on account of the
lack of a fair process of recruitment. There
may be varied circumstances in which an ad
hoc or temporary appointment may be made.
The power of the employer to make a
temporary appointment, if the exigencies
W.P.(C) No.24545 of 2021 Page 37 of 82
of the situation so demand, cannot be
disputed. The exercise of power however
stands vitiated if it is found that the exercise
undertaken
(a) was not in exigencies of administration; or
(b) where the procedure adopted was
violative of Articles 14 and 16 of the
Constitution; and/or
(c) where the recruitment process was
overridden by the vice of nepotism, bias or
mala fides."
6.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC
OnLine Ori 267, it has been observed as follows:
"9. With regard to the regularization of the services of
the petitioners, a mention has been made in
Annexure-4 that the petitioners being irregular
recruits, their regularization is not permissible under
the State Government Rules. But this condition made
in the restructuring order in Annexure-4 so far as it
relates to the petitioners cannot be applicable in
view of the fact that the petitioners have been
appointed against regular vacancies available in the
regular scale of pay admissible to the post. But in
view of their continued service for more than 10
years, their cases are covered by the ratio of the
judgment of the apex Court in Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR
2006 SC 1806, wherein the apex Court has held that
the appointments made against temporary or ad-hoc
basis are not to be regularized. In paragraph 53 of
the said judgment, it is provided that irregular
appointment of duly qualified persons against
W.P.(C) No.24545 of 2021 Page 38 of 82
sanctioned posts, who have worked for 10
years or more can be considered on merits and
steps to be taken as one time measure to
regularize them. In Paragraph 53 of the said
judgment, the apex Court has held as follows:
'53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa and B.N.
Nagarajan 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 above referred to and in
the light of this judgment. In that context, the
Union of India, the State Governments and
their instrumentalities should take steps to
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
W.P.(C) No.24545 of 2021 Page 39 of 82
reopened based on this judgment, but there
should be no further by-passing of the
constitutional requirement and regularising or
making permanent, those not duly appointed
as per the constitutional scheme.'
10. The object behind the exception carved out in this
case was to permit regularization of such
appointments, which are irregular but not illegal,
and to ensure security of employment of those
persons who served the State Government and their
instrumentalities for more than ten years. Similar
question came up for consideration before the apex
Court in Civil Appeal No. 2835 of 2015 (arising out of
SLP (Civil) No. 20169 of 2013 disposed of on
13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015)
8 SCC 265]. In paragraphs 12 and 13, the apex
Court has held as follows:
'12. Elaborating upon the principles laid down in
Umadevi's case (supra) and explaining the
difference between irregular and illegal
appointments in State of Karnataka Vrs. M.L.
Kesari, (2010) 9 SCC 247, this Court held as
under:
'7. It is evident from the above that there is
an exception to the general principles
against "regularisation" enunciated in
Umadevi (3), if the following conditions
are fulfilled:
(i) The employee concerned should
have worked for 10 years or more in
duly sanctioned post without the
benefit or protection of the interim
order of any court or tribunal. In
W.P.(C) No.24545 of 2021 Page 40 of 82
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 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.'
13. Applying the ratio of Umadevi's case, this Court
in Nihal Singh Vrs. State of Punjab, (2013) 14
SCC 65 directed the absorption of the Special
Police Officers in the services of the State of
Punjab holding as under:
'35. Therefore, it is clear that the
existence of the need for creation of
the posts is a relevant factor with
reference to which the executive
government is required to take
rational decision based on relevant
W.P.(C) No.24545 of 2021 Page 41 of 82
consideration. In our opinion, when
the facts such as the ones obtaining
in the instant case demonstrate that
there is need for the creation of
posts, the failure of the executive
government to apply its mind and
take a decision to create posts or
stop extracting work from persons
such as the appellants herein for
decades together itself would be
arbitrary action (inaction) on the part
of the State.
36. The other factor which the State is
required to keep in mind while creating or
abolishing posts is the financial
implications involved in such a decision.
The creation of posts necessarily means
additional financial burden on the
exchequer of the State. Depending upon
the priorities of the State, the allocation of
the finances is no doubt exclusively
within the domain of the legislature.
However in the instant case creation of
new posts would not create any
additional financial burden to the State as
the various banks at whose disposal the
services of each of the appellants is made
available have agreed to bear the burden.
If absorbing the appellants into the
services of the State and providing
benefits on a par with the police officers
of similar rank employed by the State
results in further financial commitment it
is always open for the State to demand
the banks to meet such additional
W.P.(C) No.24545 of 2021 Page 42 of 82
burden. Apparently no such demand has
ever been made by the State. The result
is-- the various banks which avail the
services of these appellants enjoy the
supply of cheap labour over a period of
decades. It is also pertinent to notice that
these banks are public sector banks.'***"
6.7. Reference can also be had to Amarendra Kumar
Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR
2014 SC 1716; Subrata Narayan Das Vrs. State of
Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated
12.07.2022.
6.8. In the case of Union of India Vrs. Central Administrative
Tribunal, (2019) 4 SCC 290 the following is the
observation:
"25. The Court noted in the above judgment that if a strict
and literal interpretation was given to the decision in
Umadevi, no employee from the State of Jharkhand
appointed on an irregular basis could ever be
regularized as the State was formed on 15
November 2000 and the cut-off date had been fixed
as 10 April 2006. The intent of the Court was to
grant similarly-placed employees who had put the
requisite years of service as mandated by Umadevi,
the benefit of regularization. The Court thus held
that the Jharkhand Sarkar ke Adhinasth Aniyamit
Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa
Niyamitikaran Niyamawali, 2015 ('the
Regularisation Rules') must be interpreted in a
pragmatic manner and employees of the State who
had completed 10 years of service on the date of
promulgation of the rules, ought to be regularized. In
W.P.(C) No.24545 of 2021 Page 43 of 82
doing so, the Court ensured that employees in the
State of Jharkhand who had completed the same
years of service as employees from other States, are
granted parity in terms of regularization. The spirit
of non-discrimination and equity runs through the
decisions in Umadevi [(2006) 4 SCC 1], ML Kesari
[(2010) 9 SCC 247] and Narendra Kumar Tiwari
[(2018) 8 SCC 238].
26. In this background, the issue which now arises
before this Court is in regard to the effective direction
which would govern the present case. The High
Court has directed the Union of India to absorb the
casual workmen, if it is not possible at the Institute
in question, then in any other establishment. The
latter part of the direction, as we have already
noted, cannot be sustained. Equally, in our opinion,
the authorities cannot be heard to throw their hands
in despair by submitting that there are no vacancies
and that it had already regularized such of the
persons in the seniority list, who reported for work.
The Tribunal has entered a finding of fact that this
defence is clearly not borne out of the record.
Accordingly, we are of the view that having decided
to implement the decision of the Tribunal, which was
affirmed by the High Court, the Union of India must
follow a rational principle and abide strictly by the
seniority list in proceeding to regularize the workmen
concerned. Accordingly, we direct that the case for
regularization shall be considered strictly in
accordance with the seniority list in pursuance of the
directions which were issued by the Tribunal and
confirmed by the High Court and such of the
persons, who are available for regularization on the
basis of vacancies existing at present, shall be
considered in accordance with law. The Tribunal has
W.P.(C) No.24545 of 2021 Page 44 of 82
denied back-wages but has ordered a notional
fixation of pay and allowances. While affirming that
direction, we also direct that persons who have
crossed the age of superannuation will be entitled to
the computation and payment of their retiral dues on
that basis. This exercise shall be carried out within a
period of three months from the receipt of a copy of
the judgment. If it becomes necessary to grant age
relaxation to the concerned workmen, the Appellants
shall do so."
6.9. In Vibhuti Shankar Pandey Vrs. State of Madhya
Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it
has been stated as follows:
"*** The Division Bench rightly held that the learned
Single Judge has not followed the principle of law as
given by this Court in Secretary, State of Karnataka and
Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as
initial appointment must be done by the competent
authority and there must be a sanctioned post on
which the daily rated employee must be working.
***"
6.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of
Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of
the Judgment runs as follows:
"7. Before delving into the niceties of the order passed
by the tribunal, this Court deems it proper to
examine the claims of the petitioner on the basis of
the factual matrix available on record itself. On the
basis of the pleadings available before this Court, no
doubt the petitioner had approached the tribunal
seeking regularization of his services.
Regularization in service law connotes official
W.P.(C) No.24545 of 2021 Page 45 of 82
formalisation of an appointment, which was
made on temporary or ad hoc or stop gap or
casual basis or the like, in deviation from the
normal rules of applicable norms of
appointment. Such formalisation makes the
appointment regular. The ordinary meaning of
regularisation is "to make regular" according to The
Shorter Oxford English Dictionary, 3rd Edition, and
according to Black's Law Dictionary, 6th Edition, the
word "regular" means:
'Conformable to law. Steady or uniform in course,
practice, or occurrence; not subject to unexplained or
irrational variation. Usual, customary, normal or
general. Gerald Vrs. American Cas. Co of Reading,
Pa., D.C.N.C., 249 F, Supp. 355, 357. Made
according to rule, duly authorised, formed after
uniform type; built or arranged according to
established plan, law, or principle. Antonym of
"casual" or "occasional," Palle Vrs. Industrial
Commission, 79 Utah 47, 7 P. 2d. 248, 290.'
8. The above being the meaning of "regular", as per the
common parlance given in dictionary, in B.N.
Nagarajan, Vrs. State of Karnataka, AIR 1979 SC
1676 = (1979) 4 SCC 507, the apex Court held that
the effect of such regularization would depend on
the object or purpose for which the regularization is
made or the stage at which it is made. Once
regularized, the procedural infirmities which
attended the appointment are cured. Regularization,
however, does not necessarily connote permanence.
9. The word 'regular' or 'regularisation' do not
connote permanence and cannot be construed
so as to convey an idea of the nature of tenure
of appointments. They are terms calculated to
W.P.(C) No.24545 of 2021 Page 46 of 82
condone any procedural irregularities and are
meant to cure only such defects as are
attributable to methodology followed in
making the appointments. Relying on the
Judgments of the apex Court in B.N. Nagarajan Vrs.
State of Karnataka, AIR 1979 SC 1676 = (1979) 4
SCC 507, the Constitution Bench of the apex Court in
State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1
has also taken the same view, which has also been
followed by the apex Court in Hindustan Petroleum
Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2
SCC 717 and also in Hindustan Aeronautics Ltd.
Vrs. Dan Bahadur Singh, (2007) 6 SCC 207.
10. Temporary or ad hoc or stop gap or casual basis or
the like appointments are made for various reasons.
An emergent situation might make it necessary to
make such appointments. Since the adoption of the
normal method of regular recruitment might involve
considerable delay regulating in failure to tackle the
emergency. Sometimes such appointments were
to be made because although extra hands are
required to meet the workload, there are no
sanctioned posts against which any regular
recruitment could be made. In fact in the case
of ad hoc or casual appointees, the
appointments, are in the majority of cases, not
against sanctioned posts and the appointments
are made because of the necessity of workload
and the constraints of sanctioning such post
(mainly on financial consideration) on
permanent basis. Needless to say that filling up
vacancies against sanctioned posts by
regularisation is against the constitutional provisions
of equality of opportunity in the matter of public
employment violating Articles 14 and 16 of the
W.P.(C) No.24545 of 2021 Page 47 of 82
Constitution by not making the offer of employment
to the world at large and allowing all eligible
candidates equality of opportunity to be considered
on merits. If that be so, considering the emergent
necessity of filling up of vacancies and allowing the
petitioner to continue for a quite long period, even if
with one day break in service, cannot be stated to be
a reasonable one, rather, this is an unfair and
unreasonable action of the authority concerned.
***
12. In view of above constitutional philosophy, whether
Courts can remain as mute spectator, is a matter to
be considered to achieve the constitutional goal in
proper perspective. But all these questions had come
up for consideration and decided by the Constitution
Bench of the apex Court in Umadevi (3) mentioned
supra. The factual matrix of the case in Umadevi (3)
arose for consideration from a judgment of
Karnataka High Court. In some of the cases, the
Karnataka High Court rejected the claims of
persons, who had been temporarily engaged as
daily wagers but were continued for more than 10
years in the Commercial Taxes Department of the
State of Karnataka for regularization as permanent
employees and their entitlement to all the benefits of
regular employees. Another set of civil appeals arose
from the order passed by the same High Court on a
writ petition challenging the order of the government
directing cancellation of appointments of all casual
workers/daily rated workers and seeking a further
direction for the regularization of all such daily wage
earners engaged by the State or local bodies. These
claims were rejected by the Division Bench of the
Karnataka High Court on appeal from the judgment
of the learned Single Judge. The reason for the
W.P.(C) No.24545 of 2021 Page 48 of 82
mater being considered by the Constitution Bench
arose because of two earlier orders of reference
made by a Bench of two-Judge and subsequently by
a Bench of three-Judge- Secretary, State of
Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and
Secretary, State of Karnataka Vrs. Umadevi (2)
(2006) 4 SCC 44, respectively, as they noticed the
conflicting opinions expressed by the earlier 3 Bench
judgments in relation to regularization."
6.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C)
No. 19951 of 2020, vide Judgment dated 09.09.2021, the
Single Bench of this Court has made the following
observation:
"8. It is worthwhile to mention here that the Court comes
into picture only to ensure observance of
fundamental rights, and to ensure the rule of law
and to see that the executive acts fairly and gives a
fair ideal to its employees consistent with
requirements of Articles 14 and 16 of the
Constitution, and that the authority should not
exploit its employees nor should it seek to take
advantage of the helplessness and misery of either
the unemployed persons or the employees, as the
case may be. For this very reason, it is held that a
person should not be kept in contractual, temporary
or ad hoc status for a long period. Where a
contractual, temporary or ad hoc appointment is
continued for long, the Court presumes that there is
need of a regular post and accordingly directs for
regularization. While issuing direction for
regularization, the Court must first ascertain
the relevant fact, and must be cognizant of the
several situations and eventualities that may
W.P.(C) No.24545 of 2021 Page 49 of 82
arise on account of such direction. If for any
reason, a contractual, ad hoc or temporary
employee is continued for a fairly long spell,
the authorities must consider his case for
regularization, provided he is eligible and
qualified according to rules and his service
record is satisfactory and his appointment
does not run counter to the reservation policy
of the State. Even though a casual labourer is
continued for a fairly long spell, say two or three
years, a presumption may arise that there is regular
need for his service. In such a situation, it becomes
obligatory for the concerned authority to examine the
feasibility of his regularization. While doing so, the
authorities ought to adopt a positive approach
coupled with empathy for the person."
6.12. Aforesaid Judgment rendered by the Single Judge of this
Court in Patitapaban Dutta Dash (supra) got the seal of
approval of this Court being carried in appeal before the
Division Bench bearing W.A. No. 777 of 2021, which
came to be disposed of vide Judgment dated 12.04.2023
[see, (2023) (I) ILR-CUT 906]. While directing the State of
Odisha to implement the direction of the Single Judge
"in letter and spirit", this Court in the ultimate held as
follows:
"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 regularization. The law in M.L.
Kesari (supra), has been reiterated in Amarkant Rai
Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain
W.P.(C) No.24545 of 2021 Page 50 of 82
Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR
2018 SC 233 and Rajnish Kumar Mishra Vrs. State
of U.P., (2019) 17 SCC 648."
6.13. Noticing the Judgment of the Hon'ble Supreme Court in
the case of Secretary, State of Karnataka and Others Vrs.
Umadevi (3), (2006) 4 SCC 1, in Niranjan Nayak Vrs.
State of Odisha & Others, 2023 (I) OLR 407 the
observation of this Court runs as follows:
"12. Similarly, in the case of Amarendra Kumar
Mahapatra and Others Vrs. State of Odisha and
Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the
Supreme Court was of the opinion that the
appellants were entitled to regularization in
service having regard to the fact that they have
rendered long years of service on ad hoc basis.
13. In the case at hand, it can be ascertained that the
petitioner was appointed against a substantive
vacant post and he had been discharging his duties
in the said post since 1993. The appointment was
made on an ad hoc basis and was extended from
time to time. Since the petitioner was appointed
against substantive vacancy and the post was
sanctioned by higher authorities, the petitioner
should have been extended the benefit of
regulatisation like other similarly situated
persons."
Analysis and discussions:
7. As per data regarding each of the petitioners enumerated
in tabular form in the impugned Order dated
07.08.2021, the Commissioner of Commercial Tax &
W.P.(C) No.24545 of 2021 Page 51 of 82
Goods and Services Tax, Odisha is candid in supporting
the case of the petitioners that they participated in the
interview conducted by the Selection
Committee/Commercial Tax & Goods and Services Tax
Organisation pursuant to advertisement published in
the Office Notice Board. Such course being followed by
the said Organisation with the consent/knowledge of the
Commissioner of Commercial Tax & Goods and Services
Tax, Odisha, at this distance of time he cannot be
allowed to be heard that he or his subordinates
committed mistake while engaging the petitioners as
drivers and throughout these years since 2008 his office
and his subordinate office utilised the services of the
drivers for the purpose of departmental works.
7.1. It is also transpired from the said data given in the
tabular form that the petitioners faced process of
selection by appearing at the interview conducted by the
Selection Committee. Therefore, there can be no denial
that recruitment process was followed in absence of
appropriate rules put in place at that relevant period.
7.2. At paragraph 5(b) of the counter affidavit filed by the
opposite parties through Joint Commissioner of
Commercial Tax & Goods and Services Tax, it has been
admitted by stating thus:
"The petitioners were appointed as contractual drivers
against the post created/sanctioned by the Government.
The petitioners 1, 3 to 8 and 10 to 11 were selected for
W.P.(C) No.24545 of 2021 Page 52 of 82
contractual appointment by Selection Committee
constituted at the level of their respective
appointing authorities through advertisement in
Office Notice Board followed by interview which was
not the appropriate procedure for recruitment to the
post of Driver. The petitioner No.2 was selected and
appointed by the the Joint Commissioner of Commercial
Tax, Sambalpur Range and the petitioner No.9 was
appointed by the Commissioner of Commercial Taxes,
Odisha on consideration of their applications."
7.3. It is queer to notice that when the engagements of
drivers ranging from 2008 to 2013 were being made with
the knowledge and approval of the Commissioner of
Commercial Tax & Goods and Service Tax, Odisha,
Cuttack, he could dispute his own method and manner
of selection process.
7.4. The basic ground as is apparent from the impugned
Order dated 07.08.2021 seems to be that the eligibility
criteria specified in General Administration Department
Notification No.26108/Gen., dated 17.09.2013 read with
No.1066/Gen, dated 16.01.2014 was not satisfied for
the purpose of consideration of regularization of
contractual appointments on completion of six years of
satisfactory contractual service.
7.5. For ready reference both the Resolutions are reproduced
hereunder:
"GAD-SC-RULES-0009-2013--26108/Gen
Government of Odisha
W.P.(C) No.24545 of 2021 Page 53 of 82
General Administration Department
***
RESOLUTION
Bhubaneswar dated the 17th September, 2013.
SUB: Regular appointment of existing contractual Group C
and Group D employees who are not holding any
post in contravention of any statutory Recruitment
Rules made under the proviso to Article 309 of the
Constitution of India or any executive instruction in
absence of such rules.
The policy regarding regular appointment of following
categories of contractual Group 'C' and Group 'D'
employees appointed under the State Government was
under active consideration of Government for some time
past. Contractual appointments/engagements made
against contractual posts created with the concurrence of
Finance Department on abolition of the corresponding
regular posts or contractual appointments/engagements
made against contractual posts created with the
concurrence of Finance Department without abolition of
any corresponding regular post in case of new offices or
for strengthening of the existing offices/services, following
the recruitment procedure prescribed for the
corresponding regular posts and the principle of
reservation of Posts and services for different categories
of persons decided by the state Government from time to
time.
Government after careful consideration and in
supersession of the Resolutions/Orders/Instructions
issued by different Departments of Government to that
effect; except as respects things done or omitted to be
done before such supersession, have been pleased to
decide as follows:
W.P.(C) No.24545 of 2021 Page 54 of 82
1. Regular Appointment.--
(1) A gradation list of such contractual employees shall
be prepared by the Appointing Authority on the basis
of their date of appointment. In case, the dates of
appointment of two or more employees are the same
their inter-se position may be decided on the basis of
their date of birth, taking the elder as senior.
(2) Regular appointment of the above categories of
contractual employees shall be made on the date of
completion of six years of service or from the date of
publication of this Resolution, whichever is later, in
the order in which their names appear in the
gradation list prepared under para 1. The period of
six years shall be counted from the date of
contractual appointment prior to publication of this
Resolution.
(3) Consequent upon regular appointment under the
contractual post, if any, shall get re-converted to
regular sanctioned post.
(4) In case the person concerned has crossed the upper
age limit for entry into Government service on the
date of contractual appointment for the
corresponding regular post, the appointing authority
shall allow relaxation of upper age limit.
2. Conditions of Service on Regular Appointment.--
(1) Regular Appointments: On the date of satisfactory
completion of six years of contractual service or from
the date of publication of this Resolution, whichever
is later, they shall be deemed to have been regularly
appointed. A formal order of regular appointment
shall be issued by the appointing authority.
W.P.(C) No.24545 of 2021 Page 55 of 82
(2) Pay and other benefits: On regular appointment they
shall be entitled to draw the time scale of pay plus
Grade Pay with DA and other allowances as
admissible in the corresponding pay band.
(3) Other conditions of service:
(a) The other conditions of service shall be such as
has been provided in the relevant recruitment
rules.
(b) The conditions of service in regard to matters
not covered by this Resolution shall be the
same as are or as may from time to time be
prescribed by the State Government.
3. Interpretation.--
If any question arises relating to the interpretation of
this Resolution, it shall be referred to the State
Government whose decision thereon shall be final.
4. This has been concurred in by Finance Department
and Law Department vide their UOR No.2909-ACSF,
Dated 09.07.2013 and UOR No.1687/L., Dated
19.07.2013 respectively.
ORDER:Ordered that the Resolution be published in the extraordinary issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all Departments of Government / all Heads of Departments/all Collectors / Registrar, Odisha High Court / Registrar, Odisha Administrative Tribunal Special Secretary, Odisha Public Service Commission / Secretary, Odisha Staff Selection Commission/ Secretary, Odisha Sub-ordinate Staff Selection Commission, Bhubaneswar.
W.P.(C) No.24545 of 2021 Page 56 of 82By Order of the Governor NITEN CHANDRA Special Secretary to Government"
*** *** *** [No. 1066-GAD-SC-RULES-0009/2013/Gen.] General Administration Department RESOLUTION The 16th January, 2014 Sub: Regular Appointment of existing Contractual Group C and Group-D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such rules.
1. As per General Administration Department Resolution No. 26108/Gen., Dated the 17th September, 2013, the following are the mandatory eligibility conditionalities for regularlzation of contractual appointees/engagements.
(i) Contractual appointments/engagements must have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services,
(ii) Such Contractual appointments/engagements must have been made following the recruitment W.P.(C) No.24545 of 2021 Page 57 of 82 procedure prescribed for the corresponding regular posts, and
(iii) Principle of reservation of Posts must have been followed in case of such Contractual appointments/engagements.
In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolution unless the mandatory eligibility conditionalities described above are fulfilled.
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.
3. In order to prevent misuse of the aforesaid Resolution, it is felt necessary to put appropriate mechanism in place to ensure that the necessary conditionalities as mentioned in Para. 1 are met.
4. Government, therefore, after careful consideration have been pleased to decide in the following manner.
(a) Proposal for regularization of contractual appointees/engagements as per the aforesaid Resolution shall be considered and approved by a High Power Committee to be constituted W.P.(C) No.24545 of 2021 Page 58 of 82 under the Chairmanship of the Secretary of the relevant Department in which the concerned Head of Department and FA/AFA of the Department shall be Members.
(b) In case the matter pertains to Administrative Department, then the High Power Committee shall be constituted under the Chairmanship of the Secretary of the Department with Special Secretary/Additional Secretary in-charge of the office establishment and FA/AFA of the Department as Members.
(c) While considering the cases of regularization, High Power Committee shall at the outset ensure that the concerned appointments fulfil the mandatory eligibility conditionalities as elucidated in Para. 1 above and thereafter consider the case on the basis of the stipulations contained under the heading 'Regular Appointments' of the General Administration Department Resolution No.26108/Gen, Dated the 17th September, 2013.
5. This Resolution has been issued with the advice of Finance Department communicated to General Administration Department vide their DOR No.5660- ACSF, dated the 19th December, 2013.
Order: Ordered that the Resolution be published In the Extraordinary Issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all departments of Government/ all Heads of Departments/all Collectors/ Registrar, Odisha High Court/Registrar, Odisha Administrative Tribunal/Special W.P.(C) No.24545 of 2021 Page 59 of 82 Secretary, Odisha Public Service Commission/Secretary. Odisha Staff Selection Commission/Secretary, Odisha Sub-ordinate Staff Selection Commission. Bhubaneswar.
By Order of the Governor NITEN CHANDRA Special Secretary to Government"
7.6. From the aforesaid Resolutions, it is crystal clear that in order to consider regularization of contractual appointees/engagements, besides such contractual posts are created with the concurrence of the Finance Department, recruitment procedure prescribed for the corresponding regular posts and principles of reservation of posts were required to be followed.
7.7. In the present cases of the petitioners, there is no cavil that the posts were created with sanction of the Government and the Finance Department concurred for the same. Besides this, the authorities at the Commercial Tax & Goods and Services Tax Organisation were well aware of the recruitment procedure, yet they, as employers, have with eyes open put the advertisement in the Office Notice Board and the Selection Committee selected the drivers and appointment/engagement letters were issued in their favour. There is no dispute about unblemished service rendered by the petitioners and it is also undeniable that the authorities at the Commercial Tax & Goods and Services Tax Organisation have been utilising their services throughout these W.P.(C) No.24545 of 2021 Page 60 of 82 years, since 2008-2013 till date without any complaint from any quarter.
7.8. The objection as to adherence to the principles contained in the ORV Act, it is the employer, namely the Commissioner Commercial Tax & Goods and Services Tax, who happens to be author of the impugned order, was required to have kept in mind the necessity of compliance of such reservation policy. After engaging the drivers on contractual basis, which is stated to have been renewed annually since their engagement till date, when the regularization of service fell for consideration, the very authority could not be allowed to shun his responsibility by saying that at the relevant point of engagement these criteria were not followed.
7.9. Nonetheless, these criteria stipulated in the aforesaid Resolutions have come to be published much after the engagement of these petitioners-drivers. Furthermore, notwithstanding such Resolutions having come to exist in the year 2013 and 2014, till date these petitioners- drivers have been given extensions and there is no objection as to discharge of duties. It is manifest from the data provided by the Commercial Tax & Goods and Services Tax Organisation in the counter affidavit referred to above that the petitioners have completed six years of satisfactory service and by now more than 10 years.W.P.(C) No.24545 of 2021 Page 61 of 82
7.10. These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their hopes and expectations for indefinite future with unresponsive indifference. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the Sword of Damocles over their head.
7.11. It is fact admitted by the Commercial Tax & Goods and Services Tax Organisation that the engagements of the petitioners against vacant sanctioned posts were made after the Selection Committee upon interview selected them in connection with advertisement published on the Office Notice Board. In view of State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410; and Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716 wherein it has been clearly laid down that in order to ascertain whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. It has already been noticed in Umadevi's case, (2006) 4 SCC 1, which was further explained in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, that the W.P.(C) No.24545 of 2021 Page 62 of 82 "regularisation" in service can be permissible 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.
ii. 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.
7.12. It is manifest from record that by now the petitioners have completed more than 10 years of service as per Umadevi (3), (2006) 4 SCC 1 [although the Government has accepted six years of satisfactory service for regularization in terms of Resolution dated 17.09.2013 read with Resolution dated 16.01.2014] and the authorities of the Commercial Tax & Goods and Services Tax Organisation including the Commissioner of Commercial Tax & Goods and Services Tax, Odisha employed the petitioners and extended their terms in service voluntarily and continuously for more than ten years.
7.13. In view of discussions made supra as regards legal position, the appointment/engagement of the petitioners should not be illegal, even if irregular. It is trite that where the appointments are not made or continued W.P.(C) No.24545 of 2021 Page 63 of 82 against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But in the instant case, as there is no complaint with respect to possession of the prescribed qualifications and the petitioners have been working against sanctioned posts, and have been selected by undergoing the process of selection, such appointments could neither be said to be illegal nor irregular.
7.14. Noteworthy to refer to the Order dated 06.12.2021 passed in W.A. No.231 of 2016 [Vice Chairman, State Council for Technical Education & Vocational Training, Odisha] and batch, wherein it has been observed as follows:
"In each of these appeals, the respondent has worked as contractual watchman for over ten years. It is also stated in the counter affidavit filed in the writ petition in paragraph 13 by the present appellants that there were in fact five vacancies in sanctioned posts of watchman. The only distinction sought to be made is that for benefiting by the decision in Secretary, State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1, their appointments had to be merely 'irregular' and not 'illegal'.
The fact remains that the respondents have been working continuously as watchmen. It is not the case of the appellant that they are not qualified to be employed as watchman. Given the fact that the respondents have worked as watchmen on contract basis for over ten years, it is obvious that the appellant requires their services. In the circumstances, this Court is not inclined to interfere W.P.(C) No.24545 of 2021 Page 64 of 82 with the impugned order of the learned Single Judge requiring the appellants to consider the cases of the respondents for regularization.
The appeals are dismissed."
7.15. Following observation in Order dated 10.05.2018 of this Court in State of Odisha Vrs. Jatin Kumar Das, W.P.(C) 6661 of 2018 [S.L.P.(C) No.18642 of 2018 against said Order got dismissed by the Supreme Court on 06.08.2018] is noteworthy:
"However, while parting with the order, we may note that whatever may be the mode of engagement/appointment, there is concurrence of the Finance Department and the employees in question were engaged in different Departments of the Government and rendered their services uninterruptedly. Besides that, mode of engagement adopted and selection process followed was consciously adopted and law prevalent at the relevant time for engagement of contractual employees was scrupulously followed under the aegis of Government functionaries. But, surprisingly, after utilizing their services for more than a decade, when question of bringing them under regular establishment arises, they (employees) are pushed to a corner. Government functionaries in a welfare State should refrain from adopting hire and fire policy. The action taken amounts to gambling with the career of the employees, some of whom might have been overaged to compete for employment."
7.16. So long as the Commercial Tax & Goods and Services Tax Organisation does not furnish any material on record to show that the exercise of selection process was undertaken without administrative exigencies and the W.P.(C) No.24545 of 2021 Page 65 of 82 process of selection is tainted with the vice of nepotism, bias or mala fides, there can be no gainsaying that the petitioners are liable to be regularised.
8. Though the aspect of adherence to the provisions of the ORV Act, 1975 has been referred to above, it may be worthwhile to deal with said point by supplementing with the view expressed by the Hon'ble Supreme Court in this regard.
8.1. The stance of the Commissioner of Commercial Tax & Goods and Services Tax as reflected in his Order dated 07.08.2021 to refuse regularisation of service of the petitioners is liable to be interfered with inasmuch as the Hon'ble Supreme Court in such context has observed in the Order dated 21.11.2022 passed in S.L.P.(C) No.95 of 2019 as follows:
"Having heard learned counsel appearing for the petitioner and in the peculiar facts and circumstances of the case and considering the fact that the respondents herein/original applicants were continued since 2008 against the regular posts and completed six years of contractual service, they were entitled to the benefit of Resolution dated 17.09.2013. The submission made on behalf of the respondents that at the relevant time when they were appointed, the reservation was not followed and, therefore, they are not entitled to regularisation is concerned, the petitioner/State cannot be permitted to take such a stand after continuing them on contractual basis for approximately six years. No W.P.(C) No.24545 of 2021 Page 66 of 82 interference of this Court is called for. The Special Leave Petition stands dismissed.
Pending application(s), if any, shall stand disposed of."
8.2. In State of Odisha Vrs. Biswamitra Parida, W.A. No.822 of 2020, vide Order dated 10.02.2021 it has been observed by this Court as follows:
"In view of the Resolution dated 17.09.2013, since the respondents have already completed the required years of continuous service/engagement and posts were created pursuant to the direction of the learned Court, the appellants-opposite parties should not have engaged the respondents on contractual basis. Therefore, the appellants opposite parties should regularize the service of the respondents in accordance with the Resolution dated 17.09.2013 of the General Administration Department.
Considering the above facts, it is not disputed that similar questions on principles of ORV Act which were not followed earlier, series of writ petitions were disposed of which were confirmed by the Apex Court in SLP No.18642 of 2018 dated 06.08.2018 in the case of State of Odisha & Anr. Versus Jatin Kumar Das which arises out of Original Application No.2172(C) of 2015 and batch of cases. In the said Original Application, the learned Tribunal has already dealt with the said issue having not followed the Rules of the ORV Act at paragraph-8 of the judgment dated 17.05.2017 and Original Applications were disposed of by the Tribunal wherein the following specific finding was given:
'the ORV Posts and Services Act 1975 has no application to the posts to be filled up through contract in terms of Section-3(d) of the said Act. The respondents failed to W.P.(C) No.24545 of 2021 Page 67 of 82 produce any paper indicating the amendment of Section 3(d) of ORV Act, 1975 so also they could not able to produce the documents that there was any other statutory and mandatory provision overriding section 3(d) referred to above for application of the reservation principle while issuing contractual engagement/appointment in favour of the applicants during the year 2005.' However, pursuant to the direction of this Court to take instruction, learned Additional Government Advocate submitted that the Resolution dated 17.09.2013 passed by the General Administration Department for regularization of the DLR, daily wages employees shall be applicable in the case of present respondents.
In view of the above facts, all the writ petitions were disposed of confirming the order of Tribunal and the said orders of the writ petitions were confirmed by the apex Court in Special Leave Petition on the same issue. Rightly the learned Single Judge has directed the appellants- State authorities to regularize services of the Respondents petitioner in terms of the above facts and circumstances narrated in the above paragraphs. Therefore, we are not inclined to interfere with the impugned order dated 03.09.2020 passed by the learned Single Judge in W.P.(C) No.22112 of 2020. Accordingly, the Writ Appeal is dismissed."
8.3. Said matter was carried to the Hon'ble Supreme Court in S.L.P.(C) No.6851 of 2021 [State of Odisha Vrs. Biswamitra Parida] wherein the following Order was passed on 30.06.2021:
" We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution.W.P.(C) No.24545 of 2021 Page 68 of 82
2 The Special Leave Petitions are accordingly dismissed.
3 Pending application, if any, stands disposed of."
8.4. For another reason the ORV Act, 1975 has no application to the present context; for that the State Government has introduced amendment to Section 3 thereof by virtue of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Ordinance, 2023 [published in Odisha Gazette, Extraordinary No.1996, dated 19.08.2023], which has been given effect to "at once". Later said Ordinance has been promulgated as the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Act, 2023 [published in Odisha Gazette, Extraordinary No.2543, dated 07.11.2023], which came into force with effect from 19.08.2023. Sub-section (2) of Section 3 as inserted by virtue of said amendment reads as, "Notwithstanding anything contained in sub-section (1), reservation shall apply to appointment made or to be made to all tenure posts or contractual posts or schematic posts which are to be regularized against the sanctioned posts." No ambiguity can possibly be entertained. Cursory glance at said amendment, which specifies the effective date as 19.08.2023 (prospective amendment), it is perceived that prior thereto the ORV Act, 1975, had W.P.(C) No.24545 of 2021 Page 69 of 82 no application to contractual posts for consideration of regularisation against the sanctioned posts.
8.5. In such view of the matter, the impugned Order of the Commissioner of Commercial Tax & Goods and Services Tax cannot be sustained inasmuch as non-adherence to the provisions of the ORV Act, 1975 has been taken as a factor to dispel the claim of the petitioners for regularization in service.
9. To contend that the ruling in the decision rendered in Patitapaban Dutta Dash (supra) [Single Bench as got confirmed in Division Bench] cannot be made applicable to the present fact-situation of the cases of the petitioners, it has been pointed out by the learned Additional Standing Counsel by way of written note that against the said decision of this Court, the Government of Odisha has moved the Hon'ble Supreme Court of India in S.L.P.(C) No.16949 of 2023 and batch, wherein following Order was passed on 14.08.2023:
"SLP(C) Nos. 16949/2023, 16945/2023 & 16825/2023 Issue notice, returnable on 11th September, 2023.
2. Mr. B.S. Tripathi, learned Advocate appearing on behalf of Mr. Siddharth Jain, Advocate-on-Record, on caveat, waives notice for the respondents.
3. Counter affidavit shall be filed within four weeks.W.P.(C) No.24545 of 2021 Page 70 of 82
4. In the meantime, further proceedings in Contempt Petition, if filed, before the High Court alleging non- compliance of the impugned order shall remain stayed.SLP(C) No. 17393/2023
Issue notice and tag with SLP(C) No. 16949/2023."
9.1. It appears from the above, the Judgment dated 12.04.2023 of Division Bench of this Court in Patitapaban Dutta Dash, W.A. No. 777 of 2021, (2023) (I) ILR-CUT 906 has not been stayed.
9.2. At this stage, reference to principle discussed in the case of Orissa Power Generation Corporation Ltd. Vrs. State of Odisha, AIR 2015 Ori 128 = 2015 (II) ILR-CUT 909 = 2015 SCC OnLine Ori 90 (paragraphs 47-54) may be relevant. In this case it has been observed as follows:
"47. Now let us see whether the decision of the High Court is of binding nature and if so to whom. Undoubtedly, there is no express provision in the Constitution like Article 141, in respect of the High Court, Tribunals within the jurisdiction of the High Court are bound to follow its judgment, but as the High Court has the power of superintendence over them under Articles 226 and 227 of the Constitution, the law declared by the High Court in the State is binding on them.
48. The honourable Supreme Court in the case of East India Commercial Co. Ltd., Calcutta Vrs. Collector of Customs, Calcutta AIR 1962 SC 1893, held as under:W.P.(C) No.24545 of 2021 Page 71 of 82
'*** We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and that they cannot ignore it. ***'
49. The honourable Supreme Court in the case of Sri Baradakanta Mishra Vrs. Bhimsen Dixit, (1973) 1 SCC 446, held as follows :
'15. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the Constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior Court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the Constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the Constitutional authority and respect of the High Court, generally, but is also W.P.(C) No.24545 of 2021 Page 72 of 82 likely to subvert the rule of law and engender harassing uncertainty and confusion in the administration of law.'
50. The honourable Supreme Court in the case of Union of India Vrs. Kamlakshi Finance Corporation Ltd.
AIR 1992 SC 711, in paragraph 6 has observed as follows:
'*** The High Court has, in our view, rightly criticized the conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi- judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not 'acceptable' to the Department-- in itself an objectionable phrase-- and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.' W.P.(C) No.24545 of 2021 Page 73 of 82
51. The honourable Supreme Court in the case of Sri Baradakanta Mishra (1973) 1 SCC 446 held that a subordinate court or Tribunal/Authority refusing to follow a High Court's decision where a petition for leave to appeal to Supreme Court against that High Court decision was pending would amount to deliberate disobedience and wilful disregard of the High Court and is contempt of Court. Therefore, in the case at hand the plea of the assessing authority with regard to not following the decision of this court on the ground of pendency of SLP before the honourable Supreme Court amounts to deliberate disobedience and wilful disregard of this Court.
52. In the case of K.N. Agrawal Vrs. Commissioner of Income-tax, (1991) 189 ITR 769 (All), while emphasizing the need of following judgments of the High Courts by the assessing officer, the Allahabad High Court has observed as under (pages 772 and 773 in 189 ITR) :
'*** Indeed, the orders of the Tribunal and the High Court are binding upon the assessing officer and since he acts in a quasi-judicial capacity, the discipline of such functioning demands that he should follow the decision of the Tribunal or the High Court, as the case may be. He cannot ignore it merely on the ground that the Tribunal's order is the subject-matter of revision in the High Court or that the High Court's decision is under appeal before the Supreme Court. Permitting him to take such a view would introduce judicial indiscipline, which is not called for even in such cases. It would lead to a chaotic situation.***' W.P.(C) No.24545 of 2021 Page 74 of 82
53. The Andhra Pradesh High Court in the case of State of Andhra Pradesh Vrs. Commercial Tax Officer, (1988) 68 STC 177 (AP) = (1988) 169 ITR 564 (AP), held as under (page 186 in 68 STC) :
'*** If any authority or the Tribunal refuses to follow any decision of this High Court on the above grounds it would be clearly guilty of committing contempt of this High Court and is liable to be proceeded against.'
54. Needless to say that if the Tribunal and authorities functioning within the territorial jurisdiction of the High Court would not follow the order of the High Court that will lead to chaos. Everybody would be then seeking interpreting the law according to their own whims and fancies. In such situation, lawyers may confuse not knowing how to advise their clients. The general public would be in dilemma as to what is the correct position of law. As a result, the judiciary would lose its credibility."
9.3. Matter in the said Orissa Power Generation Corporation Ltd. (supra) being carried to the Hon'ble Supreme Court of India in S.L.P.(C) No. 35253 of 2015 by the State of Odisha, on 05.07.2017 the following Order was passed:
"Heard the learned counsels for the parties and perused the relevant material. We do not find any legal and valid ground for interference.
The Special Leave Petition is dismissed.W.P.(C) No.24545 of 2021 Page 75 of 82
Contempt proceedings against Mr. A.C. Nayak, Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur is directed to stand closed."
9.4. The following observation of the Calcutta High Court in the case of Pijush Kanti Chowdhury Vrs. State of West Bengal, 2007 SCC OnLine Cal 267 referring to Narcotics Control Bureau Vrs. Dilip Prahlad Namade, AIR 2004 SC 2950 and Shree Chamundi Mopeds Ltd. Vrs. Church of South India Thrust Association, Madras, AIR 1992 SC 1432, may be pertinent:
"Therefore, the effect of the order of stay in a pending appeal before the Apex Court does not amount to 'any declaration of law' but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the Judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned."
9.5. With the well-settled proposition of law, the mere fact that the order of this Court is not 'acceptable' to the Government/Department in itself an objectionable phrase and such order is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended.
Conclusion:
10. Given the delineated scope of consideration for regularisation in service vis-à-vis proposition of law, it is W.P.(C) No.24545 of 2021 Page 76 of 82 apparent that each reason ascribed in Order dated 07.08.2021 of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha vide Annexure-17 cannot be countenanced.
10.1. It is manifest that the rejection of claim of the petitioners was on account of: non-adherence to conditionalities specified in General Administration Department Resolutions No.26108/Gen., dated 17.09.2013 read with No. 1066/Gen., dated 16.01.2014; and the appointments must have been made against sanctioned post with concurrence of the Finance Department. In this respect it has candidly been admitted by the opposite parties in their counter affidavit that the petitioners were appointed as contractual drivers against the post created/sanctioned by the Government.
10.2. Second aspect is with respect to following the proper procedure of selection. In the first place, either the subordinate officer or the Commissioner of Commercial Tax & Goods and Services Tax, Odisha chose to publish the advertisement in the Office Notice Board. It is admitted in the counter affidavit that each of the petitioners have faced interview undertaken by the Selection Committee. In view of Umadevi (3), (2006) 4 SCC 1 and other cases namely, Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265 and Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716 made it abundantly clear that the W.P.(C) No.24545 of 2021 Page 77 of 82 engagement if made against sanctioned post, but recruitment process as per rules was not followed, then such appointment/engagement could be considered as "irregular", but not "illegal". In the present case, no material was placed to the effect that during 2008-2013, when the petitioners were engaged, there was in vogue set of recruitment Rules. Therefore, with the knowledge and consent of the Commissioner of Commercial Tax & Goods and Services Tax such process of selection by the Selection Committee was adopted and having engaged pursuant thereto, the services of the petitioners were exploited during these years till date by extending the term of service, as admitted by the opposite parties. Thus, the reason to refuse regularise the service of the petitioners is found to be incorrect.
10.3. The third reason ascribed based on condition specified in the aforesaid Resolutions is that the principles of the ORV Act, 1975 was not followed. In this regard the finding of this Court is based on earlier decided cases of this Court against which the Hon'ble Supreme Court dismissed special leave petition and interdicted by stating that the State cannot be permitted to take such a stand after continuing the employees on contractual basis for (approximately) six years.
10.4. Drawing distinction from what has been spelt out in Umadevi (3), (2006) 4 SCC 1, in the impugned Order in Annexure-17 it has been stated that the irregular W.P.(C) No.24545 of 2021 Page 78 of 82 appointment could be regularized, if the contractual employee continued for 10 years. Again such stance of the opposite parties cannot be held to be sustained inasmuch as by now the petitioners have completed 10 years. Nonetheless, in terms of the General Administration Resolutions referred to above clearly made it a principle so far as the State of Odisha is concerned, it is six years. Therefore, by the time representation is considered by the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, while some of the petitioners completed six years, some others completed ten years. It is, thus, observed that the ratio laid down in the case laws referred to supra are not being followed in its proper perspective.
10.5. As it appears the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, while considering the representation of the petitioners, failed to take into account each case of contractual appointees whose services have been regularised, in order to maintain parity in approach. In the course of hearing the learned counsel appearing for the petitioners has furnished for perusal of this Court very many Office Orders to illustrate that the cases of contractual appointees were taken up and they have been considered for regularisation in service. It seems from the tenor of letter of appointments regularising contractual employees of Commercial Tax & Goods and Services Tax Organisation W.P.(C) No.24545 of 2021 Page 79 of 82 as also other Departments of the State Government that individual case of the petitioners has not been considered in right earnest. It has been held in State of Karnataka Vrs. C. Lalitha, (2006) 2 SCC 747 that service jurisprudence evolved by the Supreme Court of India from time to time postulates that all persons similarly situated should be treated similarly. Further, Raman Kumar Vrs. Union of India, 2023 SCC OnLine SC 1018 has restated the exposition of law as stated in Ravi Verma Vrs. Union of India, 2018 SCC OnLine SC 3860 that the act of regularizing the services of some employees and not regularizing the services of the others is discriminatory and violative of Article 14 of the Constitution of India. The objection raised against such proposition by the learned Additional Standing Counsel placing reliance on State of Uttar Pradesh Vrs. Arvind Kumar Srivastava, (2015) 1 SCC 347 that the cases of the petitioners relate to contractual engagement in the post of driver whereas the consideration of regularisation in service by different Department as also the Commercial Tax & Goods and Services Tax Organisation related to contractual engagees of post other than driver is liable to be repelled.
11. Having accepted the position that the petitioners have been engaged against sanctioned post upon being selected by the Selection Committee in connection with advertisement published by the Commercial Tax & W.P.(C) No.24545 of 2021 Page 80 of 82 Goods and Services Tax Organisation, the claim of the petitioners could not have been denied or disputed by the Commissioner of Commercial Tax & Goods and Services Tax, more so when he himself and his subordinates have utilised the services of the drivers appointed in such manner.
11.1. After allowing the petitioners to work for more than six years or ten years, on specious plea of non-fulfilment of conditionalities stipulated in the Resolutions dated 17.09.2013 and 16.01.2014 by the self-same authority who appointed and/or had the knowledge of having appointed through his subordinate authorities, the petitioners ought not to have been deprived of being considered for regularisation in their service.
12. Under the aforesaid premises, the opposite party No.2 while considering the representation of the petitioners pursuant to direction of this Court in Judgment dated 21.06.2021 passed in W.A. No.79 of 2021, failed to have regard to the principles as set forth by the Hon'ble Supreme Court of India as also this Court in the context of regularisation in service of contractual employees, the Order dated 07.08.2021 is clearly vitiated, being untenable. The reasons ascribed for the conclusions arrived at therein are found to be inconsistent with the settled position of law as discussed above. The opposite party No.2-the Commissioner of Commercial Tax & Goods and Services Tax having not passed conscientious W.P.(C) No.24545 of 2021 Page 81 of 82 order, the impugned Order at Annexure-17 of the writ petition is liable to be quashed and this Court does so.
13. On finding the reasons ascribed by the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, Cuttack not in consonance with the rulings of the Hon'ble Supreme Court as also this Court, having thus quashed his Order No.1245-SMNG-HC-51/2020/ CT&GST, dated 07.08.2021 vide Annexure-17, there is no option but to direct the opposite parties to consider the claim of each of the petitioners for regularisation in service in the light of discussions made in the foregoing paragraphs. It goes without saying that in the event of regularisation in service of the petitioner(s), he shall be entitled to all consequential services and financial benefits in accordance with law. This Court hopes and trusts that the opposite parties shall take pragmatic view of the matter within a period of three months from today.
14. In the result, the writ petition stands disposed of with the above direction, but in the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 16th August, 2024//LAXMIKANT/SUCHITRA Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Aug-2024 20:19:20 W.P.(C) No.24545 of 2021 Page 82 of 82