Orissa High Court
Brajendra Kumar Jena vs State Of Odisha on 21 October, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.38099 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Brajendra Kumar Jena
Aged about 50 years
Son of Late Gangadhar Jena
At: Durga Prasad
P.O./P.S./District: Nayagarh
At present working as
Inferior Filed Worker (I.F.W.)
At: Malaria Department under
C.D.M.O.-cum-P.H.O.
of Nayagarh District. ... Petitioner.
-VERSUS-
1. State of Odisha
Represented through
the Commissioner-cum-Secretary
Health and Family Welfare Department
At: Lokseva Bhawan
Bhubaneswar, District: Khordha.
2. Director of Health Services, Odisha
Bhubaneswar, Heads of Department Building
Bhubaneswar, District: Khordha.
3. Deputy Secretary to Government
Health & Family Welfare Department
Heads of Departments Building
Bhubaneswar, District: Khordha.
4. Chief District Medial Officer, Nayagarh,
At/P.O./District: Nayagarh ... Opposite parties.
W.P.(C) No.38099 of 2021 Page 1 of 88
Counsel appeared for the parties:
For the Petitioner : M/s. Amitav Tripathy and
Ashok Kumar Behera,
Advocates
For the Opposite parties : Mr. Arnav Behera,
Additional Standing Counsel
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 19.09.2024 :: Date of Judgment : 21.10.2024
J UDGMENT
MURAHARI SRI RAMAN, J.--
The petitioner, working as Inferior Field Worker on
contractual basis, laid challenge against Order
No.567-BBSR-MF-NVBDCP-IV-84/2021, dated
22.11.2021 of the Director of Health Services, Odisha,
in refusing to regularise him in service even after six
years of his engagement against vacant sanctioned
post in the Office of the Chief District Medical and
Public Health Officer, Nayagarh district by way of filing
the instant writ petition under Article 226/227 of the
Constitution of India with the following prayer(s):
"The petitioners above named, therefore, pray that this
Hon‟ble Court may graciously be pleased to issue Rule
NISI calling upon the opposite parties to show cause as
W.P.(C) No.38099 of 2021 Page 2 of 88
to why the Order dated 22.11.2021 passed by the
opposite party No.2 shall not be quashed.
If the opposite parties fail to show cause or show
insufficient cause, Your Lordships may be pleased to
quash the Order dated 22.11.2021 passed by opposite
party No.2, the Director of Health Service under
Annexure-12 and further be pleased to direct the
opposite party No.2 to regularize the present petitioner
in the post of Inferior Field Worker (IFW) in the office of
CDMO, Nayagarh in the District of Nayagarh.
And pass such other order/orders and
direction/directions as this Hon‟ble court deem fit and
proper.
And for this act of kindness, the petitioner shall as in
duty bound ever pray."
Facts as reflected in the writ petition:
2. The detail narration of facts as stated by the writ
petitioner reveals that the petitioner was appointed
temporarily as Night-watchman on daily wages in the
Office of the Chief District Medical and Public Health
Officer, Nayagarh-the opposite party No.4 (for
convenience, "CDM & PHO") vide Order in Memo
No.7037, dated 18.06.1999.
2.1. While working as such, the petitioner participated in
the walk-in-interview conducted by the CDM & PHO
held on 31.05.2010 for engagement in one vacant post
of Inferior Field Worker ("IFW", for short) in the
Malaria Department in response to advertisement
W.P.(C) No.38099 of 2021 Page 3 of 88
published in the Notice Board of the Office and being
selected he joined as IFW (Male) in the Office of
Assistant District Medical Officer (Public Health),
Nayagarh on 01.06.2010.
2.2. As the petitioner has been working since 1999, he
claimed for regularization of his service. Though he
has completed more than ten years of service, his case
for regularisation in service being not considered, an
Original Application bearing O.A. No.2030 of 2020 was
filed before the Odisha Administrative Tribunal,
Bhubaneswar which came to be disposed of vide Order
dated 14.08.2013 with a direction to the CDMO for
consideration of regularisation in service "against a
permanent vacancy subject to eligibility for the said
post in terms of qualifications and other prescribed
requirements". In pursuance thereof, citing fact that
the petitioner had already completed fourteen years of
service, the CDM & PHO had made correspondence on
28.11.2013 with the Additional Secretary, Health and
Family Welfare Department, seeking permission to
regularize the petitioner against the vacant post of
Class-IV (Group D). Responding to said
communication, the Deputy Secretary to Government
of Odisha in Health and Family Welfare Department
vide Letter No.13513--FW(IW)-156/2013/H, dated
23.05.2014 made it clear that the case of the
petitioner "does not deserve any consideration for his
W.P.(C) No.38099 of 2021 Page 4 of 88
regularisation in service in terms of the General
Administration Department Resolution dated
17.09.2013" on the ground that "Sri Jena was
appointed on 31.05.2010 against regular vacant post
of IFW without observing any recruitment Rules or the
Odisha Reservation of Vacancies in the Posts and
Services (for Scheduled Castes and Scheduled Tribes)
Act, 1975 and Rules".
2.3. Since joining in the vacant post of IFW in the Office of
CDM & PHO on 01.06.2010, the petitioner having
completed six years of service on 01.06.2016, the CDM
& PHO by a Letter dated 21.07.2016 sought for
necessary action to regularise his service. In response
thereto, the Deputy Secretary to Government of
Odisha in Health and Family Welfare Department
called for certain information from CDM & PHO vide
Letter dated 22.09.2016, text of which is reproduced
hereunder:
"Government of Odisha
Health and Family Welfare Department
No. 20172-FW-(IW)-101/2016/H.,
Date: 22.09.2016
From
Sri D. N Mohapatra,
Deputy Secretary to Government
To
The Director of Health Services, Odisha,
W.P.(C) No.38099 of 2021 Page 5 of 88
Bhubaneswar.
The Chief District Medical Officer. Nayagarh.
Sub.: Regularisation of contractual service of Sri
Bajendra Kumar Jena, IFW. O/o the DM,
Nayagarh.
Ref: Letter No. 2675 dated 21.07.2016 of CDMO,
Nayargarh.
Sir,
I am directed to invite a reference to your letter
noted above on the caption subject and to request
that the following information may please be
furnished to this Department immediately for
further action at this end.
1. As transpires from order No. 5 dated 14.08.2013
in OA No. 2030/2012 filed by Brajendra Kumar
Jena Vrs-State of Odisha a junior to the applicant
has been allowed appointment in Class-III/Group-
C post prior to the applicant. If this is true a detail
be furnished.
2. Whether the ORV Act and rules and due
procedures has been followed at the time of
appointment of Sri Jena.
3. If, Sri Jena fulfils the criteria for regularisation as
per G.A. Department Resolution No. 26108/Gen.,
dated 17.09.2013 read with Resolution No. 1066
dated 16.01.2014.
4. Whether contractual post of IFW was created on
abolition of regular vacant post of IFW with
concurrence of Finance Department and if so, a
copy of Government order be furnished.
W.P.(C) No.38099 of 2021 Page 6 of 88
5. Whether proper recruitment procedure was
followed at the time of appointment & if so, an
authenticated copy of advertisement & copy of
selection committee meeting be furnished to this
Department.
Yours faithfully,
Sd/- 20.09.2016
Deputy Secretary to Govt."
2.4. On 21.11.2016 the CDM & PHO supplied required
information sought for, which is as follows:
"Office of the Chief District Medical Officer : Nayagarh
Letter No. 4502 Date 21.11.2016
To
The Deputy Secretary to Government
Health & Family Welfare Department
Odisha, Bhubaneswar
Sub.: Regularization of Contractual Service of
Sri B.K. Jena, IFW
Office of the DMO, Nayagarh
Ref.: Your Letter No.20172, dated 22.09.2016
Sir,
In inviting to your letter No. and date cited above, I
am furnishing here with the following required
information and documents for necessary action
on the subject.
1. That, in pursuance of the order No.30438/H,
dated 27.10.2007 & 32113/H, dated 07.12.2010
of the Government of Odisha, Health & Family
Welfare Department, Bhubaneswar Sri Saroj
Kumar Pradhan, Retrenched Sweeper-cum-
W.P.(C) No.38099 of 2021 Page 7 of 88
Attendant retrenched candidate of O.H.S.D.P.
Nayagarh promoted to the Class-III/Group-C Post
as Contractual M.P.H.W(M) vide this Office Order
No.5219, dated 31.12.2010 (Copy enclosed).
2. As only one post is functioning in the district the
O.R.V. Act not followed. the time of appointment
only interview.
3. That, Sri Brajendra Ku. Jena in continuing as
I.F.W. on contractual basis since 31.05.2010 vide
this office order No. 2319, dated 31.05.2010 (Copy
enclosed) as such he has been completed more
than six years of service in the said post, as
regards he was working as „Night watchman‟ in
this office from 18.06.1999 to 30.05.2010 vide this
Office Order No. 7036, dated 18.06.1999 prior to
this appointment (Copy enclosed) in pursuance of
Letter No.9826/H, dated 11.03.1998 of the Under
Secretary, Government of Odisha, Health &
Family Welfare Department, Bhubancowar. So his
regularization as per Resolution No. 26108/Gen,
dated 17.09.2013 and read with Resolution No.
1066, dated 16.01.2014 may be considered.
4. The post of IFW is contractual post which has
been redeployed from the Principal District, Puri
vide Order No. 17014, dated 06.09.1994 of
Director of Health Services, Odisha, Bhubaneswar
(Copy enclosed) and since the post is functioning
in the district on contractual basis.
5. That the said post has been filled-up by the
Walking-in-Interview vide this office Memo No.
2165 dated 22.05.2010 (Copy enclosed).
This is for favour of your kind information and
necessary action.
W.P.(C) No.38099 of 2021 Page 8 of 88
Yours faithfully
Sd/- 21.11.2016
Chief District Medical Officer,
Nayagarh"
2.5. Despite such compliance being made by the CDMO, no
action was taken by the Government, which prompted
the petitioner to submit representation dated
23.09.2019. The petitioner also brought the fact to the
competent authority by way of grievance petition,
acting on which the Deputy Secretary Government
requested the CDMO vide Letter dated 02.11.2019 to
examine the case for regularisation and instructed to
"furnish necessary proposal for consideration of his
regularisation if satisfied this Department Letter
No.13530/H., dated 08.05.2018 and General
Administration and Public Grievance Department
Resolution No.26108, dated 17.09.2013 read with
No.1066, dated 16.01.2014".
2.6. Responding to said instruction, the CDMO in Letter
No.5315/Estt., dated 11.12.2019 furnished necessary
information regarding service particulars of the
petitioner for consideration of regularisation in service
as he completed six years of contractual service as
IFW (Group-D). The following service particulars are
supplied to the Director of Public Health, Odisha,
Bhubaneswar:
W.P.(C) No.38099 of 2021 Page 9 of 88
2.7. The case of the petitioner is that, he being appointed
on contractual basis since 31.05.2010 and in the
meantime he has completed ten years of service
against the vacant post. The authority concerned has
followed all the required rules and procedure while
appointing the present petitioner in the above post.
2.8. Attempts for consideration of regularisation in service
by the Authority concerned did not yield result, which
led the petitioner to approach this Court in writ
petition, being W.P.(C) No.37522 of 2020, and vide
Order dated 08.01.2021 the opposite party No.2 was
directed to consider the representation within a period
of six weeks from the date of communication of copy of
the order. Accordingly the petitioner submitted the
copy along with the writ petition before the opposite
party No.2. As there was non-compliance of said order,
the petitioner had to move this Court in contempt
petition, CONTC No.3944 of 2021 which was disposed
of on dated 20.07.2021. Even the same being not
complied by the Authority, another contempt petition
being CONTC No.6575 of 2021 was filed. During the
W.P.(C) No.38099 of 2021 Page 10 of 88
pendency of this second contempt petition, i.e. CONTC
No.6575 of 2021, the opposite party No.2 passed the
Order dated 22.11.2021 which is impugned in this
writ application.
The impugned Order dated 22.11.2021 passed by the
Director, Health Services, Odisha:
3. The following is the Order dated 22.11.2021 passed by
the Director, Health Services, Odisha:
"Directorate of Health Services : Odisha, Bhubaneswar
Orders No. 567/BBSR-MF-NVBDCP-IV-84/2021
Dated 22.11.2021
Whereas one Sri Brajendra Kumar Jena,
Contractual Inferior Field Worker (IFW), now
working under the CDM & PHO, Nayagarh had
filed a writ petition bearing No WP (C) 37522 of
2020 before the Hon‟ble High Court of Odisha
praying therein to regularize his contractual
Services with effect from 01.06.2017 as he
had completed 06 (Six) years of Contractual
Services in the said post.
2) And whereas in disposing the said writ petition
the Hon‟ble High Court of Odisha vide their orders
No. 02 dated 08.01.2021 have passed orders to
opposite party No.2 i.e. Director of Health Services,
Odisha to look into the grievance of the petitioner
vide Annexure-9 and take decision, as
appropriate, taking into consideration the plea
taken in the writ petition within a period of 06 (Six)
weeks from the date of communication of a copy of
W.P.(C) No.38099 of 2021 Page 11 of 88
their orders along with copy of the writ petition by
the petitioner.
3) And whereas on receipt of the above orders of the
Hon‟ble High Court of Odisha the undersigned
examined all the relevant document in connection
with the contractual engagement of the petitioner
along with the prescribed Guidelines as laid down
vide Government in General Administration
Department Resolution No.26108/Gen, dated
17.09.2013 and No. 1066/Gen., dated
16.01.2014 for regularization of the contractual
services of the Group-„C‟ & „D‟ employees of the
State thoroughly.
4) And whereas after examination of the above
documents it is observed that Sri Brajendra
Kumar Jena first engaged as „Night-watchman‟ on
daily wage basis by CDMO, Nayagarh in his
district since 18.06.1999. Then he was engaged
as „Inferior Filed Worker‟ (IFW) on contractual
basis vide CDMO, Nayagarh Orders No.2319
dated 31.03.2010 without following any
recruitment procedure like publishing of
open advertisement/following ORV Act &
Rules thereof as per provisions laid down
vide Government in General Administration
Department Resolution No.26108/Gen., dated
17.09.2013 and No.1066/Gen. dated
16.01.2014 for regularization of the
contractual services of the Group-'C' & 'D'
employees of the State thoroughly.
5) And whereas the Government in General
Administration Department have clarified vide
their Letter No.7210 dated 03.03.2021 that the
order of the Hon'ble Supreme Court in Uma
W.P.(C) No.38099 of 2021 Page 12 of 88
Devi Judgment (dated 10.04.2006) Cases
shall not be applicable to the Contractual
Appointments engagements made after
11.04.1996. In the instant case the petitioner has
been engaged as contractual IFW under the Chief
District Medical & Public Health Officer, Nayagarh
after 11.04.1996 i.e. on 31.03.2010 (sic.,
31.05.2010).
6) And whereas in view of the facts stated above, Sri
Brajendra Kumar Jena, Contractual IFW does not
meet the mandatory provisions for
regularization of this contractual services as per
Government in General Administration Department
Resolution No.26108/Gen. dated 17.09.2013; No.
1066/Gen., dated 16.01.2014 and clarification
issued on Uma Devi Case vide General
Administration Department Letter No.7210/Gen.
dated 03.03.2021.
7) Hence the prayer of the petitioner Sri Brajendra
Kumar Jena for regularization of his contractual
services after 06 (Six) years of services with effect
from 01.06.2017 in the post of IFW against regular
vacant posts in Nayagarh district does not merit
any consideration and is hereby rejected.
Director of Health Services,
Odisha"
Submissions of counsel for the petitioner:
4. In the aforesaid background of engagement of the
petitioner on being found successful and suitable in
the test-- Walk-in-Interview-- conducted by the Chief
Medical Officer and Public Health Officer for the
W.P.(C) No.38099 of 2021 Page 13 of 88
position of "IFW on contractual basis" against vacant
post in connection with advertisement published in
the Notice Board, Sri Amitav Tripathy, learned
Advocate proceeded to submit that the reasons
ascribed for rejecting the representation to consider
regularization in service is unethical, unbecoming and
based on jejune grounds, viz.:
i. non-publishing of open advertisement;
ii. non-adherence to the ORV Act & Rules framed
thereunder;
iii. claim for regularisation in service does not fall
within the ambit of General Administration
Department Resolution No.26108/Gen., dated
17.09.2013 and No.1066/Gen. dated
16.01.2014;
iv. the present case falls foul of the clarification
issued in the Secretary, State of Karnataka Vrs.
Umadevi (3), (2006) 4 SCC 1, as per General
Administration Department Letter No. 7210/Gen.
dated 03.03.2021.
4.1. Moving forward with his erudition, learned counsel for
the petitioner advancing further submitted that since
01.06.2010 the petitioner has been working as IFW
against vacant post and he was refused regularization
in service vide Letter No.13513-FW(IW)-156/2013/H.,
W.P.(C) No.38099 of 2021 Page 14 of 88
dated 23.05.2014 on the sole ground that "Sri Jena
was appointed as IFW on 31.05.2010 against regular
vacant post of IWF on daily wages basis without
observing any recruitment rule and ORV Rules". It has
specifically been stated in the said letter that "the case
of Sri Jena does not deserve any consideration for his
regularization in service in terms of General
Administration Department Resolution dated
17.09.2013", albeit, he was allowed to continue to
work as such till date. Thus, by now the petitioner
acquires eligibility for consideration of regularization
in service. The Authority concerned-- Government of
Odisha-- should not play dirty games with the citizen/
employee like the petitioner, whose services have been
exploited right since 1999 as "Night-watchman" and
subsequently since 2010 in the vacant sanctioned post
of IFW. At this stage when the petitioner is around 53
years of age, denial of his legitimate claim smacks
arbitrariness and the action of Director of Health
Services is tainted with flagrant violation of settled
parameters laid down by the Hon‟ble Supreme Court
of India as also criteria stipulated in the relevant
Resolutions of the Government of Odisha.
4.2. In furtherance to what has been submitted above, it is
urged by Sri Amitav Tripathy, learned Advocate that
the CDM & PHO, Nayagarh in compliance of
instruction for supply of documents relating to service
W.P.(C) No.38099 of 2021 Page 15 of 88
particulars of the petitioner by the Director of Public
Health, Odisha enclosing with Letter dated 11.12.2019
forwarded relevant records and filled up all material
details required to be furnished in the Format-I and
Format-II specifying that the post of IFW is a singular
post. The said CDM & PHO, Nayagarh having
recommended the name of the petitioner for
regularisation to the Government of Odisha in Health
and Family Welfare Department way back in 2019,
cannot now turn around by filing counter affidavit
dated 06.11.2023 before this Court supporting the
ground assigned by the Director of Health Services,
Odisha. Such a stance of the CDM & PHO being
contradictory to his own recommendation, such a plea
taken by the opposite party No.4 deserves to be
deprecated and discarded.
4.3. He submitted that as there was no rules put in place
at the time of initiation of the recruitment process to
fill up the vacant post of IFW in the Health and Family
Welfare Department, the petitioner having faced walk-
in-interview conducted by the competent authority in
response to advertisement cannot be said to have not
being appointed by process of selection test. It was for
the recruiting authority specify conditions of
engagement/appointment and it is the authority who
advertised for the post to have considered to provide
for reservation in consonance with the Odisha
W.P.(C) No.38099 of 2021 Page 16 of 88
Reservation of Vacancies in the Posts and Services (for
Scheduled Castes and Scheduled Tribes) Act, 1975 or
otherwise. Nevertheless, such non-compliance, if any,
by the authority-opposite party No.4 cannot be
attributed to the petitioner. It is submitted that for the
lapses of the opposite party No.4-authority, the
petitioner, having served in the Office of Chief District
Medical & Public Health Officer since 01.06.2010 as
IFW, cannot be made to suffer rest of his life affecting
adversely livelihood of himself and his family.
4.4. Sri Amitav Tripathy, learned Advocate further
submitted that though in the impugned Order dated
22.11.2021 the Director of Health Services, Odisha
has admitted engagement of the petitioner as
contractual IFW under the CDM & PHO, Nayagarh on
31.03.2010 (sic., 31.05.2010, see Annexure-2), and
completion of six years of service with effect from
01.06.2016 in the post of IFW against regular vacant
post in Nayagarh district, he could have followed the
principles propounded in very many decisions on the
subject-matter and also the true spirit and purport of
Resolutions of the Government of Odisha. Valiant
attempt has been made by the learned Advocate for
the petitioner to persuade this Court that the refusal
of the petitioner to be regularised in the service is
irrational, contrary to settled proposition expounded
W.P.(C) No.38099 of 2021 Page 17 of 88
by the Court(s) and the denial of regularisation cannot
be countenanced by any justifiable reason.
4.5. Amplifying his arguments, it is advanced by learned
counsel that in Serial No.8 of Format-I endorsed by
the CDM & PHO, Nayagarh enclosed to Letter
No.5315/Estt., dated, Nayagarh, the 11th December,
2019, it has been mentiond that the post against
which the appointment is made falls within the
category of "single post". He placed reliance on the Dr.
Chakradhar Paswan Vrs. State of Bihar, AIR 1988 SC
959 = (1988) 2 SCC 214 = (1988) 3 SCR 130, to
buttress his contention that the case of the petitioner
falls within the category of a single or isolated post
within a cadre in respect of which the rule of
reservation is inapplicable.
4.6. Sri Amitav Tripathy, learned Advocate in furtherance
of his argument highlighted that:
i. The petitioner was selected through a process of
selection by facing interview conducted by the
Authority-opposite party No.4 and engaged
against a vacant sanctioned post of IFW on
contractual basis and has been allowed to
continue by the opposite parties voluntarily and
uninterruptedly till date since 01.06.2010.
Hence, the case of the petitioner is bound to be
considered in the light of ratio of the Judgments
W.P.(C) No.38099 of 2021 Page 18 of 88
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 there was no recruitment Rules or executive
instructions for recruitment of IFW in Health and
Family Welfare Department, process of selection
was made through advertisement published in
the Notice Board of the Office of the Chief District
Medical & Public Health Officer. Having
participated in the process of selection, the
petitioner was selected, found suitable and got
engaged in the said post of IFW.
iii. Similarly situated contractual engagees in
different Departments of the same Government of
Odisha have been regularised on completion of
six to ten years of service, whereas discrimination
is being meted out to the petitioner by not
treating him as similarly circumstanced employee
and the authority concerned should not have
denied him to extend all the consequential
service benefits.
iv. The recommendation of the CDM & PHO,
Nayagarh for regularisation of the petitioner
should have been accepted. By way of filing
counter affidavit he ought not to have
contradicted his own recommendation. Therefore,
W.P.(C) No.38099 of 2021 Page 19 of 88
it was strongly urged that the petitioner is also
entitled to similar relief, as he cannot be
discriminated against in a manner that would
violate Articles 14 and 16 of the Constitution of
India.
v. Based on General Administration Department
Resolution dated 17.09.2013 various other
Departments have already regularized services of,
the contractual engagees in the categories of
Group-C, as the case may be, Group-D.
vi. So far as engagement of employees holding
contractual posts are concerned the provisions of
the ORV Act have got no application, as held by a
Division Bench of this Court vide Order dated
10.05.2018 passed in the matter of State of
Odisha Vrs. Jatin Kumar Das, W.P.(C) No.6661 of
20181, which pertains to regularisation in service
of Data Entry Operators engaged on contractual
basis in the Commercial Tax Organization.
4.7. It is, hence, submitted by learned counsel for the
petitioner that even though the order of the Division
1 In State of Odisha Vrs. Jatin Kumar Das, S.L.P.(C) No. 18642 of 2018 [Arising
out of impugned final judgment and order dated 10.05.2018 in W.P.(C)
No.6661 of 2018 passed by the High Court Of Orissa at Cuttack] the Hon‟ble
Supreme Court of India has been pleased to pass the following Order on
06.08.2018:
"No ground for interference is made out in exercise of our jurisdiction under
Article 136 of the Constitution of India.
The special leave petition is accordingly dismissed. Pending application, if any,
stands disposed of."
W.P.(C) No.38099 of 2021 Page 20 of 88
Bench of this Court in Jatin Kumar Das (supra)
attained finality with respect to non-adherence to the
provisions of the ORV Act qua regularisation of service
of contractual engagees after the State Government
has lost its challenge before the Hon‟ble Supreme
Court of India in the year 2018, the reason for
rejecting the claim for regularisation of service on the
same ground by the Director of Health Services,
Odisha, vide impugned Order dated 22.11.2021 is
detrimental.
4.8. Thus, he urged that the impugned Order dated
22.11.2021 cannot be sustained in the eye of law.
5. Per contra relying on the counter affidavit admitting
that the petitioner faced interview in response to the
advertisement, Sri Arnav Behera, learned Additional
Standing Counsel submitted that the opposite party
No.4 has analysed factual position seemly and is
justified in refusing regularization in service.
5.1. The petitioner, joined on 01.06.2010, was entrusted to
work as IFW on daily wage basis, but not contractual
basis. The petitioner was not engaged by following
process of open and transparent recruitment. Such
engagement was 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
W.P.(C) No.38099 of 2021 Page 21 of 88
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.
5.2. It has been asserted that the statement of the
petitioner that the post of IFW is solitary post is
misconceived inasmuch as in the Letter No.17014--
MF-III-HR-10/92, dated 06.09.1994 issued by the
Directorate of Health Services, Odisha (enclosed as
Annexure-C/2 to the counter affidavit) made it clear as
follows:
"Consequent upon division of districts and creation of
new districts in the State, the IFWs working in the 10
principal districts are redeployed as per the list
attached:
***
Distribution of IFWs to new districts
Old No. of Redeployment No. of
district sanctioned post to new district posts
*** *** *** *** ***
2. Puri 5 1. Nayagarh 2
2. Khurda 2
3. Puri 1
*** *** *** *** ***
5.3. Since the post of IFW is not solitary post so far as
Nayagarh district is concerned, the provisions of the
ORV Act and rules framed thereunder are required to
be followed. Ergo, the learned Additional Standing
W.P.(C) No.38099 of 2021 Page 22 of 88
Counsel submitted that, the ruling in Dr. Chakradhar
Paswan Vrs. State of Bihar, (1988) 2 SCC 214 = (1988)
3 SCR 130 may not attract in the instant case.
5.4. In connection with applicability of Dr. Chakradhar
Paswan Vrs. State of Bihar, (1988) 2 SCC 214 = (1988)
3 SCR 130, the Hon‟ble Supreme Court of India in R.R.
Inamdar Vrs. State of Karnataka, (2019) 14 SCR 505,
made the following observations:
"2. *** The learned Single Judge held that the post of
Lecturer in English was a solitary post and in
view of the law laid down by this Court in State of
Karnataka Vrs. K. Govindappa, (2009) 1 SCC 1,
the post could not have been reserved. This view
of the learned Single Judge was approved in a
writ appeal by the Division Bench on 17 November
2015 which gave rise to the proceedings before
this Court.
3. At the outset, it would be necessary to note that
the decision of the two-Judge Bench of this Court
in K. Govindappa (supra), which has been
followed by the learned Single Judge as well as
by the Division Bench in appeal, dealt with the
issue as to whether all posts of Lecturers taken
together constituted a cadre for the purpose of
reservation or whether a solitary post of Lecturer
in History which was not interchangeable with
other posts constituted a separate cadre. The High
Court held that the post of a Lecturer in History
could not be construed to be a cadre together with
all other posts of Lecturer. This Court noted that
the Constitution Bench in Post Graduate Institute
of Medical Education and Research Vrs. Faculty
W.P.(C) No.38099 of 2021 Page 23 of 88
Association, (1998) 4 SCC 1 509 had approved the
view in Dr. Chakradhar Paswan Vrs State of
Bihar, (1988) 2 SCC 214 to the effect that there
could be no reservation in respect of a single post.
This was, however, sought to be distinguished by
the State in K. Govindappa (supra). This Court
held:
„While there can be no difference of opinion that
the expressions "cadre", "post" and "service"
cannot be equated with each other, at the same
time the submission that single and isolated posts
in respect of different disciplines cannot exist as a
separate cadre cannot be accepted. In order to
apply the rule of reservation within a cadre, there
has to be plurality of posts. Since there is no scope
of inter-changeability of posts in the different
disciplines, each single post in a particular
discipline has to be treated as a single post for the
purpose of reservation within the meaning of
Article 16(4) of the Constitution. In the absence of
duality of posts, if the rule of reservation is to be
applied, it will offend the constitutional bar
against 100% reservation as envisaged in Article
16(1) of the Constitution.‟
4. The Court held that the case fell within the
category of a single or isolated post within a cadre
in respect of which the rule of reservation was
inapplicable. In other words, each discipline which
consisted of a single post was required to be dealt
with as a separate cadre for the said discipline,
particularly, having regard to the fact that the
several disciplines were confined only to one
college.
W.P.(C) No.38099 of 2021 Page 24 of 88
5. A similar issue arose in a subsequent decision in
State of Uttar Pradesh Vrs. Bharat Singh, (2011) 4
SCC 120, where this Court held that:
„It is abundantly clear from the above that the
attribute of interchangeability and transferability
is missing in the case of Principals-- in much the
same measure as in the case of teachers, in the
lower cadre. We have, therefore, no hesitation in
holding that there is no cadre of Principals serving
in different aided and affiliated institutions and
that the Principal‟s post is a solitary post in an
institution. Reservation of such a post is clearly
impermissible not only because the Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes)
Act, 1994 provides for reservation based on the
„cadre strength‟ in aided institutions but also
because such strength being limited to only one
post in the cadre is legally not amenable to
reservations in the light of the pronouncement of
this Court to which we shall presently refer.‟
6. We may also note at this stage that on 19 January
2017, a two Judge Bench of this Court in Sanjeev
Kumar Vrs. State of Uttar Pradesh, Civil Appeal
Nos 6385-6386 of 20102 affirmed a similar view of
the Allahabad High Court, observing as follows:
„1. We have heard learned counsel for the
parties at length. We are in agreement with
the view taken in the impugned judgment
[Vishwajeet Singh Vrs. State of U.P., 2009
SCC OnLine All 420 = (2009) 4 All LJ 326 =
2 Sanjeev Kumar Vrs. State of U.P., Civil Appeal Nos 6385-6386 of 2010
reported at (2019) 12 SCC 385 = 2017 SCC OnLine SC 1664.
W.P.(C) No.38099 of 2021 Page 25 of 88
(2009) 4 ADJ 373]. The judgment of the High
Court is accordingly affirmed.
2. The civil appeals are accordingly dismissed.
No costs. Pending applications, if any, shall
also stand disposed of.‟
***
9. *** The principle which has been enunciated
by this Court is that there can be no
reservation of a solitary post and that in
order to apply the rule of reservation within
a cadre, there must be a plurality of posts.
Where there is no interchangeability of the
posts in different disciplines, each single
post in a particular discipline has to be
treated as a single post for the purpose of
reservation within the meaning of Article
16(4) of the Constitution. If this principle
were not to be followed, reservation would be
in breach of the ceiling governed by the
decisions of this Court. A circular, of the nature
that has been issued by the State of Karnataka,
cannot take away the binding effect of the
decisions of this Court interpreting the policy of
reservation in the context of Article 16(4)."
5.5. The learned Additional Standing Counsel, therefore,
vehemently opposing the contention of the counsel for
the petitioner submitted that the post of IFW held by
the petitioner is not solitary post and the non-
applicability of the ORV Act as suggested by the
petitioner cannot withstand on the touchstone of the
W.P.(C) No.38099 of 2021 Page 26 of 88
aforesaid authoritative pronouncement of the Hon‟ble
Supreme Court of India.
5.6. Reiterating the stand taken by the Director of Health
Services, Odisha that as the petitioner does not meet
the eligibility requirements specified 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, his
representation for consideration of regularization in
service has rightly been rejected. It is also submitted
that the petitioner is not eligible to be regularized in
his 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.
5.7. 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.
W.P.(C) No.38099 of 2021 Page 27 of 88
5.8. Since the case of the petitioner has 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 22.11.2021 of the
Director of Health Services, Odisha as imputed by the
petitioner at Annexure-12.
5.9. 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 case of the petitioner on merits in
compliance of direction contained in the Order dated
08.01.2021 in W.P.(C) No.37522 of 2020, there is little
scope left for this Court to exercise power of judicial
review under Article 226/227 of the Constitution of
India. The case of the petitioner does not deserve
indulgence as the Order dated 22.11.2021 vide
Annexure-12 has been passed in consonance with the
directions of this Court.
5.10. Explaining further as regards claim of parity in
treatment of the petitioners vis-à-vis similarly situated
persons, who have been considered for regularization,
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:
W.P.(C) No.38099 of 2021 Page 28 of 88
"16) That in reply to the averments made in Paragraph
20 of the writ petition, it is humbly submitted that
the petitioner was appointed temporarily as Night-
watchman initially but not as Sweeper as claimed
by the petitioner on daily wages basis as per
Annexure-I of this writ petition. After
01.06.2010, the petitioner was engaged as
Inferior Field Worker (Mal) on a fixed pay of
Rs.2,775/- P.M. @ 90/- with Rs.2.50/- V.D.A.
per day as daily minimum wages applicable
to unskilled employees and posted to PH wing
C.D.M.O. Office, Nayagarh against a vacant
post. However it is already observed by a
committee that the authority concerned at that
point of time has not followed all the required rules
and procedures while appointing the present
petitioner in the above said post.
17) That in reply to the averments made in Paragraph
21 of the writ petition, it is humbly submitted that
in pursuance to the Guidelines issued by GA & PG
Department vide Resolution dated 17.09.2013 and
dated 16.01.2014, the contractual employees
working more than six years against the regular
vacant posts are to be considered for
regularization subject to fulfilment of required
conditionalities. In the instant case, the
petitioner has not engaged as a contractual
employee rather engaged as a daily wage
employee, for which his case is not coming
within the purview of the above Guidelines of
General Administration & Public Grievance
Department for regularization of his service.
Further The Uma Devi case highlighted by
the petitioner in this paragraph is not
applicable in his case as the petitioner is
W.P.(C) No.38099 of 2021 Page 29 of 88
engaged irregularly on daily wage basis from
01.06.2010 without observing due procedures
amongst other formalities."
5.11. Having laid emphasis on the aforesaid reply filed by
way of counter affidavit to the contents and the
averments contained in the writ petition, the learned
Additional Standing Counsel fervently urged to
dismiss the writ petition.
Legal perspective of regularization of contractual
employees:
6. With the above backdrop, perceiving contradictory
stand being taken in the counter affidavit that the
petitioner was not engaged on contractual basis, but
daily wage basis in contrast to what is reflected in
paragraph 4 of the impugned Order dated 22.11.2021,
before proceeding with the matter, it is deemed
apposite to discuss first the legal perspective 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 22.04.20223 made with
respect to exploitation of service. The following
benevolent observation has been made by said Court
3 Referred to by Division Bench of this Court in State of Odisha Vrs. Rushava
Rana, 2023 SCC OnLine Ori 2295.
W.P.(C) No.38099 of 2021 Page 30 of 88
in favour of employees, whose services have been
utilized by the Government for a considerable length of
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
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
W.P.(C) No.38099 of 2021 Page 31 of 88
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 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. This Court [Single Bench] 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:
W.P.(C) No.38099 of 2021 Page 32 of 88
"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 Kapila 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 Vrs. State of Odisha,
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
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.
W.P.(C) No.38099 of 2021 Page 33 of 88
9. In Prabodh Verma Vrs. State of Uttar Pradesh,
(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, (1990) 2 SCC 746 = AIR 1990 SC 1402
and E.P. Royappa Vrs. State of Tamil Nadu, (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. 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.
W.P.(C) No.38099 of 2021 Page 34 of 88
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:
"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), [(2006) 4 SCC 1]
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
W.P.(C) No.38099 of 2021 Page 35 of 88
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) [(2006) 4 SCC 1] 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 of the situation so demand,
cannot be disputed. The exercise of power
however stands vitiated if it is found that the
exercise undertaken
W.P.(C) No.38099 of 2021 Page 36 of 88
(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 sanctioned posts, who have
worked for 10 years or more can be
considered on merits and steps to be taken
W.P.(C) No.38099 of 2021 Page 37 of 88
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
reopened based on this judgment, but there
W.P.(C) No.38099 of 2021 Page 38 of 88
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 other words, the State
W.P.(C) No.38099 of 2021 Page 39 of 88
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.38099 of 2021 Page 40 of 88
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
W.P.(C) No.38099 of 2021 Page 41 of 88
additional burden. Apparently no such
demand has ever been made by the
State. The result is-- the various banks
which avail the services of these
appellants enjoy the supply of cheap
labour over a period of decades. It is
also pertinent to notice that these banks
are public sector banks.‟***"
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
W.P.(C) No.38099 of 2021 Page 42 of 88
who had completed 10 years of service on the
date of promulgation of the rules, ought to be
regularized. In 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
W.P.(C) No.38099 of 2021 Page 43 of 88
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 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 not be inept 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
W.P.(C) No.38099 of 2021 Page 44 of 88
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 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
W.P.(C) No.38099 of 2021 Page 45 of 88
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 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,
W.P.(C) No.38099 of 2021 Page 46 of 88
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 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
W.P.(C) No.38099 of 2021 Page 47 of 88
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 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
W.P.(C) No.38099 of 2021 Page 48 of 88
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 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
W.P.(C) No.38099 of 2021 Page 49 of 88
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 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.
W.P.(C) No.38099 of 2021 Page 50 of 88
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 service particulars of the petitioner enumerated
in Format-I forming part of Letter dated 11.12.2019 of
the CDM & PHO, Nayagarh, it is found candidly
mentioned that he participated in the Walk-in-
Interview conducted pursuant to an advertisement.
Such course being followed by the said Appointing
Authority at the time of engagement in absence of
statutory rules for recruitment to the post of IFW, the
petitioner was engaged and allowed to work in the
vacant sanctioned post of IFW with effect from
01.06.2010. After completion of more than 10 years of
service at this distance of time when the matter comes
up for consideration by the appropriate authority for
regularisation, it should not be disputed by the
opposite parties that at the relevant period the
engagement was given without compliance of the
provisions of the ORV Act. While the CDM & PHO in
W.P.(C) No.38099 of 2021 Page 51 of 88
Format-I and Format-II clearly enumerated that the
post of IFW was "single post" at the time of
recruitment, by way of counter affidavit he has taken
divergent stand that there were two sanctioned posts.
7.1. This Court feels it persuaded by the particulars
submitted in Format-II appended to Letter dated
11.12.2019 referred to above, wherein as against the
post-- "IFW", in the column related to "sanctioned
strength at the time of recruitment" it is stated as "1".
Against the column meant to disclose "vacancy
position at the time recruitment", the figure "1" is
reflected and the figure "1" is found mentioned against
column: "candidates engaged". It may also be
pertinent to take note of that figure "1" being written
as against column: "total strength". Said "total
strength" is bifurcated into two columns, viz., "regular"
and "contractual". Against "regular" it is mentioned as
"0" and against "contractual" it is stated as "1".
Therefore, the opposite parties, particularly the CDM
& PHO-opposite party No.4 while filing the counter
affidavit is not competent to dispute his own statement
submitted to the Government with respect to the
status of the petitioner as contractual employee
against sanctioned post. It is surprising to take
cognizance of the fact that though the rejection Order
dated 22.11.2021 has been made by the opposite
party No.2 (Director of Health Services) in compliance
W.P.(C) No.38099 of 2021 Page 52 of 88
of direction of this Court in Order dated 08.01.2021
passed in W.P.(C) No.37522 of 2020, the opposite
party No.4 (CDM & PHO) has sworn to the affidavit
disputing the factual details which he had supplied to
the Government of Odisha in Letter dated 11.12.2019
(Annexure-11) recommending regularisation of service
of the petitioner.
8. It is also transpired from the record as also from the
impugned Order of the opposite party No.2 that by
now the petitioner has completed more than 14 years
in service since 01.06.2010, i.e., the date when he is
"engaged as Inferior Field Worker (Male) on a fixed pay
of Rs.2,775/- per month @ Rs.90/- with Rs.2.50 VDA
per day as daily minimum wages applicable to the
unskilled employees and posted to Public Health Wing,
Chief District Medical Office, Nayagarh against a
vacant post" (see, Annexure-B/2 of the counter
affidavit). Thus, he has qualified eligibility criteria
stipulated in terms of Secretary, State of Karnataka
and Others Vrs. Umadevi (3), (2006) 4 SCC 1. The
petitioner faced process of selection by appearing in
the interview conducted by the CDM & PHO,
Nayagarh. Therefore, there can be no denial that
recruitment process was followed in absence of
appropriate Rules put in place at that relevant period.
8.1. The basic ground as is apparent from the impugned
Order dated 22.11.2021 seems to be that the eligibility
W.P.(C) No.38099 of 2021 Page 53 of 88
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.
8.2. For ready reference both the Resolutions are
reproduced hereunder:
"GAD-SC-RULES-0009-2013--26108/Gen
Government of Odisha
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,
W.P.(C) No.38099 of 2021 Page 54 of 88
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:
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.
W.P.(C) No.38099 of 2021 Page 55 of 88
(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.
(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.
W.P.(C) No.38099 of 2021 Page 56 of 88
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.
By 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.W.P.(C) No.38099 of 2021 Page 57 of 88
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 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 W.P.(C) No.38099 of 2021 Page 58 of 88 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 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 W.P.(C) No.38099 of 2021 Page 59 of 88 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 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"
8.3. From the aforesaid Resolutions, it is crystal clear that in order to consider regularization of contractual appointees/engagees, besides such contractual posts are created with the concurrence of the Finance Department, recruitment procedure prescribed for the W.P.(C) No.38099 of 2021 Page 60 of 88 corresponding regular posts and principles of reservation of posts were required to be followed.
8.4. In the present case at hand, there is no cavil that the post of IFW was created with sanction of the Government and the Finance Department concurred for the same. Besides this, the CDM & PHO, Nayagarh was well aware of absence of the recruitment Rules, and therefore, he, as employer, has, with eyes open, put the advertisement in the Office Notice Board for engagement of successful candidate in the Walk-in- Interview. Said advertisement reflects as follows:
"Office of the Chief District Medical Officer, Nayagarh Walk-in-Interview Chief District Medical Officer, Nayagarh shall conduct a Walk-in-Interview on 31.05.2010 at 11 a.m. in the conference hall of Chief District Medical Office, Nayagarh for engagement one post of Inferior Field Worker on contractual basis.
Interested candidate shall report in the Office of the Chief District Medical Officer, Nayagarh on 31.05.2010 by 11 a.m. and submit their application and documents.
Sd/-
Chief District Medical Officer,
Nayagarh
Memo No.2165/ Dated 22.05.2010
Copy to Notice Board of Chief District Medical Officer, Office, Nayagarh for information.W.P.(C) No.38099 of 2021 Page 61 of 88
Sd/-
Chief District Medical Officer, Nayagarh"
8.5. The CDM & PHO selected the petitioner and appointed/engaged him in the post of IFW against sanctioned vacant post. There is no dispute about unblemished services rendered by the petitioner and it is also undeniable that the authority has been utilising his services throughout these years since 2010 till date without any complaint from any quarter.
8.6. Apropos the objection as to adherence to the principles contained in the ORV Act, it is the employer, namely the Chief District Medical & Public Health Officer, who happens to have filed the counter affidavit before this Court directly contradicted his own information supplied to the Government. He should have taken care of the necessity of compliance of such reservation policy, if any, at the time of inviting applications for the post of IFW by way of advertisement. The CDM & PHO has in his Letter No.5315/Estt./ Nayagarh, dated 11.12.2019 admitted that the IFW is a "single post" as "at the time of recruitment". Even otherwise, after engaging the petitioner on contractual basis in the post of IFW with effect from 01.06.2010, which is stated to have been "purely temporary in nature and terminable at any time without assigning any reason thereof" vide Annexure-B/3 to the counter affidavit, W.P.(C) No.38099 of 2021 Page 62 of 88 i.e., Letter in Memo No.2320, dated 31.05.2010 issued by the CDM & PHO, Nayagarh, the petitioner has been continuing till date and when the regularization of service fell for consideration, the said authority should not have shunned his responsibility by saying that at the relevant point of engagement the criteria stipulated in the Resolutions which came to exist after 2010 were not followed.
8.7. Nonetheless, these criteria stipulated in the aforesaid Resolutions have come to be published much after the engagement of the petitioner. Furthermore, notwithstanding such Resolutions having come to exist in the year 2013 and 2014, till date the petitioner has been entrusted to work as IFW and there is no objection as to discharge of duties. It is manifest from the data provided by the CDM & PHO in the counter affidavit that the petitioner has completed six years of satisfactory service and by now more than 10 years.
8.8. It is also undisputed that the petitioner has been working with the CDM & PHO since 1999. He worked as Night-watchman pursuant to engagement Letter dated 18.06.1999 and thereafter on being selected in the Walk-in-Interview conducted by said authority he has been working as IFW with the same Organization since 01.06.2010. In the considered view of this Court, the petitioner cannot be kept on the tenterhooks of his employment for years together, by brushing aside and W.P.(C) No.38099 of 2021 Page 63 of 88 discarding his hopes and expectations for indefinite future with unresponsive indifference. This is nothing but a form of exploitation of the employee by not giving him the benefits of regularisation and by placing the Sword of Damocles over his head.
8.9. It is fact admitted by the CDM & PHO that the engagement of the petitioner against sanctioned vacant post was made after his selection on facing Walk-in-Interview 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 (3)‟s case, (2006) 4 SCC 1, which was further explained in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, that the "regularisation" in service can be permissible if the following conditions are fulfilled:
W.P.(C) No.38099 of 2021 Page 64 of 88i. 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.
8.10. It is manifest from record that by now the petitioner has 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 opposite party No.4 employed the petitioner continuously for more than fourteen years.
8.11. In view of discussions made supra as regards legal position, the appointment/engagement of the petitioner should not be treated as illegal, even if irregular. It is trite that where the appointment is 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 in the instant case, as there is no complaint with respect to possession of the W.P.(C) No.38099 of 2021 Page 65 of 88 prescribed qualifications and the petitioner has been working against sanctioned post, and has been selected by undergoing the process of selection, such appointment/engagement could neither be said to be illegal nor irregular.
8.12. 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 Vrs. Braja K. Mohanty] 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 with the impugned order of the learned Single Judge requiring the appellants to consider the cases of the respondents for regularization.W.P.(C) No.38099 of 2021 Page 66 of 88
The appeals are dismissed."
8.13. Following observation made in Order dated 10.05.2018 of this Court in State of Odisha Vrs. Jatin Kumar Das, W.P.(C) 6661 of 2018 is noteworthy:
"2. This writ petition has been filed by the functionaries of the State assailing the correctness and legality of the common order dated 17.05.2017 passed by Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.2172(C) of 2015 along with similar batch of Original Applications, wherein the respondent- State Government was directed to issue formal order of regular appointment in favour of the applicants therein, who were initially engaged in 2005 as Data Entry Operators and Junior Programmers engaged in IT Organization on outsourcing basis and thereafter with effect from 17.09.2013, on annual contract basis directly by the Commercial Taxes Department, with all consequential service and financial benefits.
3. Narrating the admitted factual scenario, i.e., engagement of IT personnel on outsourcing basis thereafter on direct contractual basis by the Commercial Taxes Organization Mr. Sahu, learned Additional Government Advocate assails the impugned order on the ground that the direction for regular appointment of those IT personnel violates the Government of Odisha in G.A. Department Resolution dated 17.09.2013 fixing certain mandatory norms for regularization of contractual appointees. Secondly, 2 persons whose initial appointment was on outsourcing basis, cannot come under the regular W.P.(C) No.38099 of 2021 Page 67 of 88 establishment because no open and transparent recruitment procedure has been adopted. Thirdly, provisions of ORV Act has not been followed while appointing them on outsourcing and direct contractual basis.
4. Learned Tribunal, taking into consideration the facts and circumstances of the case as well as submissions of learned counsel for the parties, has arrived at the aforesaid conclusion, which is clear, cogent and well-reasoned, which hardly requires any interference under writ jurisdiction. Therefore, we are in agreement with the reasons assigned and findings arrived at by learned Tribunal in directing for regular appointment of the contractual employees in question, including the opposite party No.1 herein.
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 W.P.(C) No.38099 of 2021 Page 68 of 88 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."
8.14. So long as the CDM & PHO does not furnish any material on record to demonstrate that the exercise of selection process was undertaken without administrative exigencies and the process of selection is tainted with the vice of nepotism, bias or mala fides, there can be no gainsaying that the petitioner is liable to be regularised.
9. 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.
9.1. The stance of the Director of Health Services as reflected in his Order dated 22.11.2021 to refuse regularisation of service of the petitioner 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 State of Odisha Vrs. Laxman Kumar Prusty, 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 W.P.(C) No.38099 of 2021 Page 69 of 88 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 interference of this Court is called for. The Special Leave Petition stands dismissed.
Pending application(s), if any, shall stand disposed of."
9.2. 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 W.P.(C) No.38099 of 2021 Page 70 of 88 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 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 W.P.(C) No.38099 of 2021 Page 71 of 88 learned Single Judge in W.P.(C) No.22112 of 2020. Accordingly, the Writ Appeal is dismissed."
9.3. 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.
2 The Special Leave Petitions are accordingly dismissed.
3 Pending application, if any, stands disposed of."
9.4. For another reason the ORV Act, 1975 has no application to the present context; for that the State Government has introduced amendment to Section 34 4 Section 3 of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975, after insertion of sub- section (2) would read thus:
"3. Applicability.--
(1) This Act shall apply to all appointments to the Posts and Services under the State except--
(a) Class-I posts which are above the lowest rung thereof and meant for conducting or guiding or directing Scientific and Technical research;
(b) Class-I Posts which are above the lowest rung thereof and classified as scientific posts;
(c) tenure posts;
(d) those filled up on the basis of any contract;
(e) ex-cadre posts;
(f) those which are filled up by transfer within the cadre or on
deputation;
(g) the appointment of such staff the duration of whose
appointment does not extend, beyond the term of office of the person making the appointment and the work charged staff which are required for emergencies like flood relief work, accident restoration and relief etc.;
(h) temporary appointments of less than forty-five days duration;
(h-I) those which are required to be filled up by appointment of persons under the rehabilitation assistance given to the members of the family of the deceased or permanent disabled employees who suffer from the disability while in service;
W.P.(C) No.38099 of 2021 Page 72 of 88thereof 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 19.08.20235. Sub-
(i) those in respect of which recruitment is made in accordance with any provision contained in the Constitution.
(j) Schematic posts.
(2) 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."
5 The Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Act, 2023 (Odisha Act 10 of 2023) stands as follows:
[Be it encacted by the Legislature of the State of Odisha in the Seventy- fourth Year of the Republic of India, as follows:
1. Short title and commencement.--
(1) This Act may be called the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Act, 2023.
(2) It shall be deemed to have come into force on the 19th day of August, 2023.
2. Amendment of Section 3.--
In the Odisha Reservation of Vacancies In Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 [Odisha Act No. 38 of 1975], Section 3 shall be re-numbered as sub-section (1) thereof and in sub-section (1) as so re-numbered, --
(i) after clause (i), the following clause shall be inserted, namely:
"(j) Schematic Posts."
(ii) after sub-section (1) so re-numbered, the following sub-section shall be inserted, namely:
"(2) 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 regularised against the sanctioned posts."
3. Repeal and Savings.--
W.P.(C) No.38099 of 2021 Page 73 of 88section (2) of Section 3 as inserted by virtue of said amendment does not admit of any ambiguity. Cursory glance at said amendment, which specifies the effective date as 19.08.2023 (prospective amendment), suggests that prior thereto the provisions introduced by way of amendment to the ORV Act, 1975, had no application to contractual engagements for consideration of regularisation against the sanctioned posts.
9.5. It may be stated that recourse to a subsequent legislation is permissible if there exists any ambiguity in the earlier legislation for the purpose of ascertaining as to whether by a subsequent legislation proper interpretation has been fixed which is to be put upon the earlier Act. [Mahim Patram Private Ltd. Vrs. Union of India, 2007 (3) SCC 668]. Glaringly, in the present context, the case of the petitioner emanated prior to the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Act, 2023 came into force. Before said amendment Act, 2023 came into effect, the petitioner had already been eligible for consideration of regularization in service.
(1) The Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Schedule Tribes) Amendment Ordinance, 2023 [Odisha Ordinance No.3 of 2023] is hereby repealed. (2) Notwithstanding the repeal under sub-section (1), anything done or any action taken under the said Ordinance so repealed shall be deemed to have been done or taken under this Act.] W.P.(C) No.38099 of 2021 Page 74 of 88 9.6. In such view of the matter, the impugned Order of the Director of Health Services, Odisha 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 petitioner for regularization in service.
10. 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 case of the petitioner, it has been pointed out by the learned Additional Standing Counsel 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 [State of Odisha Vrs. Somanath Mahapatra] 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.
4. In the meantime, further proceedings in Contempt Petition, if filed, before the High Court alleging W.P.(C) No.38099 of 2021 Page 75 of 88 non-compliance of the impugned order shall remain stayed.SLP(C) No. 17393/2023
Issue notice and tag with SLP(C) No.
16949/2023."
10.1. 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.
10.2. 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.38099 of 2021 Page 76 of 88
„*** 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 W.P.(C) No.38099 of 2021 Page 77 of 88 the High Court, generally, but is also 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 W.P.(C) No.38099 of 2021 Page 78 of 88 only be undue harassment to assessees and chaos in administration of tax laws.‟
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 W.P.(C) No.38099 of 2021 Page 79 of 88 a view would introduce judicial indiscipline, which is not called for even in such cases. It would lead to a chaotic situation.***‟
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."
10.3. 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:W.P.(C) No.38099 of 2021 Page 80 of 88
"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.
Contempt proceedings against Mr. A.C. Nayak, Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur is directed to stand closed."
10.4. 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."
10.5. 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 W.P.(C) No.38099 of 2021 Page 81 of 88 appeal can furnish no ground for not following it unless its operation has been suspended.
Conclusion:
11. Given the delineated scope of consideration for regularisation in service vis-à-vis proposition of law, it is apparent that each reason ascribed in Order dated 22.11.2021 of the Director of Health Services vide Annexure-12 cannot be countenanced.
11.1. It is manifest that the rejection of claim of the petitioner 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 appointment 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 petitioner was appointed as IFW on contractual basis against the post created/sanctioned by the Government.
11.2. Second aspect is with respect to following the proper procedure of selection. In the first place, the employer- Chief District Medical & Public Health Officer chose to publish the advertisement in the Office Notice Board. It is not denied or disputed by the learned Additional Standing Counsel appearing for the opposite parties W.P.(C) No.38099 of 2021 Page 82 of 88 that the petitioner has faced interview undertaken by the opposite party No.4. 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 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 in 2010, when the petitioner was engaged, there was in vogue set of recruitment Rules. Therefore, with the knowledge and consent of the CDM & PHO, Nayagarh, a process of selection was adopted and having engaged pursuant thereto, the services of the petitioner was exploited during these years till date. Thus, the reason to refuse the petitioner regularisation in service is found to be capricious, illogical and contrary to settled exposition of law as enunciated in catena of decisions discussed hereinabove.
11.3. The third reason ascribed based on condition specified in the aforesaid Resolutions is that the principles of the ORV Act, 1975 were 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 said Court W.P.(C) No.38099 of 2021 Page 83 of 88 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.
11.4. Drawing distinction from what has been spelt out in Umadevi (3), (2006) 4 SCC 1, in the impugned Order in Annexure-12 it has been stated that the irregular appointment could be regularized, if the contractual employee continued for 10 years. By now the petitioner has completed more than 14 years of service. Nonetheless, in terms of the General Administration Department Resolutions referred to above clearly make 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 Director of Health Services, Odisha, the petitioner has completed more than six years or, as the case may be, ten years. It is, thus, clear that the Director of Health Services while passing impugned Order has failed to follow the rulings of the Courts referred to supra in proper perspective.
11.5. As it appears the Director of Health Services, Odisha, while considering the representation of the petitioner, failed to take into account cases of contractual appointees whose services have been regularised in identical fact-situation in other departments including the same department in order to maintain parity in W.P.(C) No.38099 of 2021 Page 84 of 88 approach. In the course of hearing, the learned counsel appearing for the petitioner has cited 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 other Departments of the State Government the case of the petitioner 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 case of the petitioner relate to contractual engagement in the post of Inferior Field Worker whereas the consideration of regularisation in service by different Departments as also the Health Department related to W.P.(C) No.38099 of 2021 Page 85 of 88 contractual engagees of posts other than IFW is liable to be repelled.
12. Having accepted the position that the petitioner has been engaged against vacant sanctioned post upon being selected by the CDM & PHO, Nayagarh in connection with advertisement published, the claim of the petitioner could not have been ignored by the same authority-opposite party No.4 by way of counter affidavit, more so when he himself has utilised the services of the petitioner having appointed/engaged to suit his requirement and allowed him to function as IFW.
12.1. After allowing the petitioner to work for more than six years or, as the case may be, ten years (in the present case the petitioner has by now put in more than 14 years of service as IFW), on specious plea of non- fulfilment of conditionalities stipulated in the Resolutions dated 17.09.2013 and 16.01.2014, the same authority-opposite party No.4 ought not to have raised objection by way of counter affidavit depriving the petitioner of being considered for regularisation in his service. This Court would wish to take cognizance of correspondences of the CDM & PHO with the Government of Odisha by furnishing material particulars regarding service of the petitioner for consideration of regularization of his service vide Annexure-11 series.
W.P.(C) No.38099 of 2021 Page 86 of 8813. Under the aforesaid premises, the opposite party No.2- Director of Health Services, Odisha, while considering the representation of the petitioner pursuant to direction of this Court in Order dated 08.01.2021 passed in W.P.(C) No.37522 of 2020, 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 22.11.2021 is, hence, 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 Director of Health Services having not taken conscientious decision, the impugned Order at Annexure-12 of the writ petition warrants interference and accordingly the same is liable to be quashed and this Court does so.
14. On finding the reasons ascribed by the Director of Health Services, Odisha, not in consonance with the rulings of the Hon‟ble Supreme Court of India as also this Court, and having thus quashed his Order No.567--BBSR-MF-NVBDCP-IV-84/2021, dated 22.11.2021 vide Annexure-12, there is no option left but to direct the opposite parties to consider the claim of the petitioner for regularisation in service in the light of discussions made in the foregoing paragraphs.
W.P.(C) No.38099 of 2021 Page 87 of 8814.1. It goes without saying that in the event of regularisation in service of the petitioner, 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.
15. 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 21st October, 2024//Laxmikant/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Oct-2024 17:05:42 W.P.(C) No.38099 of 2021 Page 88 of 88