Orissa High Court
Sri Ganesh Chandra Patra vs State Of Odisha on 13 May, 2025
ORISSA HIGH COURT : CUTTACK
WA No.2733 of 2024
In the matter of an Appeal under Article 4 of
the Odisha High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Odisha, 1948
***
Sri Ganesh Chandra Patra Aged about 55 years Son of Late Pitambar Patra Village and P.O.: Alva P.S.: Pattamundai District: Kendrapara Working as Peon-cum-Process Server on ad hoc basis in The Office of the Regional Transport Officer Chandikhole, District: Jajpur. ... Appellant
-VERSUS-
1. State of Odisha Represented though The Principal Secretary to Government Commerce and Transport (Transport) Department Odisha, Bhubaneswar.
2. The Collector & District Magistrate, Angul At/P.O./P.S./District: Angul.
WA No.2733 of 2024 Page 1 of 733. Principal Secretary to Government, Finance Department, Odisha, Bhubaneswar, District: Khordha.
4. Transport Commissioner-cum-Chairman State Transport Authority, Odisha Cuttack.
5. Regional Transport Officer, Chandikhole, District: Jajpur.
6. Accountant General (A & E) Odisha, Bhubaneswar. ... Respondents.
Counsel appeared for the parties:
For the Appellant : M/s. Prasanta Kumar Mishra, K.L. Kar and S. Mishra, Advocates For the Respondents : Mr. Bimbisar Dash, Additional Government Advocate P R E S E N T:
HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 01.05.2025 :: Date of Judgment : 13.05.2025 J UDGMENT MURAHARI SRI RAMAN, J.--
The present intra-Court appeal has been preferred assailing the Judgement dated 06.09.2024 rendered in WA No.2733 of 2024 Page 2 of 73 W.P.(C) No.989 of 2020 by a learned Single Bench with the following prayer(s):
"It is prayed, therefore that this Hon‟ble Court may graciously be pleased to:
(i) Admit the Writ Appeal,
(ii) Issue notice to Respondents and after hearing be
pleased to set aside the judgment dated 06.09.2024 passed by the Hon‟ble Single Judge in W.P.(C) No.989 of 2020 as at Annexure-1 and
(iii) Further be pleased to allow the W.P.(C) No.989 of 2020 by granting the relief(s) prayed therein 1 in favour of the Appellant-Petitioner with direction upon Respondents to grant all consequential service and financial benefits within a stipulated period of time and;
1 The relief(s) sought for in the writ petition reads as follows:
"It is prayed therefore that this Hon‟ble Court may graciously be pleased to:
(i) Admit the writ petition
(ii) Issue RULE NISI calling upon the opposite parties to show cause as to
why the impugned order dated 20.12.2019 at Annexure-7 so far it relates to abolition of Group-D post (Class-IV grade) of the office of opposite party No.4 [Regional Transport Officer, Chandikhole] against which the petitioner is continuing and para 4 (b) of Finance Department Office Memorandum dated 31.08.2019 at Annexure-6 shall not be quashed and the petitioner shall not be absorbed in Group-D vacant post under regular establishment in the Office of the opposite party No.4 [Regional Transport Officer, Chandikhole] as he is continuing against the said vacant post since long.
(iii) And if the Opposite parties fail to show cause or show insufficient cause, the rule may be made absolute and appropriate writ may be issued and the impugned order dated 20.12.2019 at Annexure-7 in respect of abolition of Group-D post of the office of opposite party No.4 [Regional Transport Officer, Chandikhole] and para 4(b) of Office Memorandum dated 31.08.2019 at Annexure-6 be quashed;
(iv) And further be pleased to direct the opposite parties to absorb the petitioner in Group-D vacant post under regular establishment in the office of the opposite party No 4 within a time to be stipulated by this Hon‟ble Court;
(v) Pass such other order (s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner;
And for this act of kindness, the petitioner as in duty bound shall ever pray."
WA No.2733 of 2024 Page 3 of 73(iv) Further be pleased to direct the Respondent Nos.3 and 4 to release salary from 16.05.2024 in favour of the Appellant within a stipulated period of time.
(v) And further be pleased to pass such other order (s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the Appellant;
And for this act of kindness, the Appellant as in duty bound shall ever pray."
Facts:
2. Facts adumbrated by the appellant leading to filing of this writ appeal, are narrated hereunder:
2.1. The appellant herein (petitioner in the writ petition) was engaged as Process-Server (Group-D) against a vacant post on Temporary/Ad hoc basis on 16.01.1997 in the Office of the Regional Transport Officer, Chandikhole in the district of Jajpur with notional break of one day at every 44 days interval and such engagement being extended from time to time, last such extension was given vide Order dated 13.12.2019.
2.2. The Regional Transport Officer, Chandikhole ("RTO", abbreviated) apprised by Letter No.5447, dated 29.09.2015 addressed to the Transport Commissioner-
cum-Chairman, State Transport Authority, Cuttack ("STA", abbreviated) recommending the name of the appellant for absorption as Process Server under regular WA No.2733 of 2024 Page 4 of 73 establishment against sanctioned Group-D vacancy. The RTO vide his Letter No.2357, dated 11.07.2017 furnished information to the STA on being requested about details of the employment of the appellant which inter alia contained that the appellant has been engaged as Process Server temporarily for 44 days with one day notional break since 1997 against a sanctioned post carrying Scale of Pay of Rs.4750/- to 14680/- with Grade Pay of Rs.1500/- as per Pay Band S-1 for Group- D employee with usual D.A. and continued with same terms from time to time.
2.3. Pursuant to the Letter No.12098/TC, dated 22.10.2018 of STA, the RTO in Letter No.4575, dated 05.11.2018 supplied information that the appellant has been continuing as "Peon-cum-Process Server on ad hoc basis (NMR)".
2.4. The Government of Odisha in Finance Department issued Office Memorandum No.29913-- FIN-TRY-ESTT- 0011-2017/F., dated 31.08.2019 inviting submission of Annual Establishment Review Report (AER) in Human Resource Management System. Pursuant thereto, the Government of Odisha in Commerce and Transport (Transport) Department vide Letter No.TRN-FE-MISC- 0026-2019/9131/T., dated 20.12.2019 suggested for termination of surplus/redundant posts in the Office of the Transport Commissioner, Odisha, Cuttack and its WA No.2733 of 2024 Page 5 of 73 subordinate offices. Accordingly said sanction of abolition of different posts contained amongst others the posts against RTO, Chandikhole were Peon (1), Chowkidar-cum-Sweeper (1), Process Server (1) and Treasury Sarkar (1).
2.5. Even while the petitioner has been engaged to work as Process Server, another Letter bearing No.4395, dated 21.12.2019 has been issued by RTO addressed to Transport Commissioner, which reveals as follows:
"Sub.:Engagement of one process server and one Chowkidar-cum-Sweeper in RTO Office, Chandikhole after termination of surplus/ redundant post in the Office of the Transport Commissioner, Odisha, Cuttack and its subordinate offices.
Ref.: Letter No. 9133/T Dt. 20.12.2019 of Govt.in Commerce and Transport(Transport) department, Odisha, Bhubaneswar Sir, With reference to the letter on the subject cited above I am to inform that one post of process server and one post of Chowkidar-cum-Sweeper of this office have been lying vacant since long and 2 persons were engaged to work under contractual basis to attend the office work. As per the letter under reference of Government in Commerce and Transport (Transport) Department the said 2 posts have been abolished and accordingly no salary under this head can be given to the persons working as Process Server and Chowkidar-cum-Sweeper.WA No.2733 of 2024 Page 6 of 73
Now this office is runnig with shortagae of staff and the services of Watchman and Process server play vey important role in RTO Office so far as movement of records and cleanness of Office is concerned.
I would therefore request you to kindly allow to engage one Chowkidar-cum-Sweeper and one Process Server to work on daily wages basis for smooth management of the office."
2.6. Aggrieved thereby, the appellant had approached this Court by way of filing a writ petition, bearing W.P.(C) No.989 of 2020, wherein by Order dated 14.01.2020 notices were issued to the respondents-opposite parties and an interim order in the Interlocutory Application, being I.A. No.391 of 2020, was passed to the following effect:
"In the event petitioner is continuing in the Group-D Post, he may continue as such for a period of six weeks from today."
2.7. The appellant having again approached this Court by way of filing another Interlocutory Application, being I.A. No.11242 of 2020 (arising out of W.P.(C) No.989 of 2020), for disbursal of his salary from December, 2019 onwards, vide Order dated 30.03.2021 the respondents were directed to release the salary in favour of the appellant within a period of fifteen days if the appellant had been working since December, 2019. Against non-
WA No.2733 of 2024 Page 7 of 73compliance of the said order dated 30.03.2021, the appellant filed a contempt petition, registered as CONTC No.5091 of 2021, wherein the following order was passed on 25.08.2023:
"***
11. Since the learned Counsel for the Petitioner submits that the present Petitioner is still working, but has not been paid his salary in terms of the direction given by this Court on 30.03.2021 in I.A. No.11242 of 2020, in view of the detailed deliberations made above, this court is of the view that the Petitioner should have been paid his salary in terms of the order passed in I.A. No.11242 of 2020 (Arising out of W.P.(C) No.989 of 2020), dated 30.03.2021 and the conduct of the Opposite Parties is contemptuous. This Court is of further view that false and contradictory affidavits have been filed in the present contempt proceeding to mislead this Court. Hence, the Opposite Parties are directed to comply the order dated 30.03.2021 passed in I.A. No.11242 of 2020 (Arising out of W.P.(C) No.989 of 2020) and file Compliance Affidavit by 12th September, 2023 after serving copy of the same on the learned Counsel for the Petitioner, failing which the Contemnor No.2, the deponent of the Show Cause Affidavit filed on 23rd August, 2023, so also the author of letter No.2905 dated 14.08.2023, present R.T.O., Chandikhol (Contemnor No.3) shall remain present before this Court on the adjourned date, at 2.00 P.M. to show cause as to why they shall not be booked under the Contempt of Courts Act, 1971 for willful flouting of order dated 30.03.2021 passed in WA No.2733 of 2024 Page 8 of 73 I.A. No.11242 of 2020, arising out of W.P.(C) No.989 of 2020."
2.8. The respondents filed appeal, being CONTAC No.7 of 2023, challenging the aforesaid Order dated 25.08.2023, which got disposed of with the following order on 22.11.2023:
"***
6. Opposing the said prayer made in I.A., neither any objection was filed by the petitioners herein nor any application for modification/clarification/variation of the order was filed. But for the first time, such a plea has been taken in the show cause affidavit filed on 03.07.2023 as to alleged disengagement of the applicant namely, Ganesh Chandra Patra with effect from 21.12.2019 which fact was not disclosed by petitioners herein. Rather, name of one "Ganeswar Patra", Peon has been indicated in Annexure-5, i.e. letter dated 24.03.2020 issued by the RTO, Chandikhol to Inspector-in-Charge, Badchana P.S. Therefore, the learned Single Judge came to a prima facie conclusion that there is violation of the order dated 30.03.2021 and called upon the contemnors to remain present before the Court on the adjourned date.
7. In that view of the matter, this Court does not find any illegality or irregularity in the order dated 30.03.2021 passed by the learned Single Judge so as to cause interference.
8. Accordingly, CONTAC stands dismissed.
Consequentially, the interim order dated 14.09.2023 WA No.2733 of 2024 Page 9 of 73 stands vacated. The CONTC No.5091 of 2021 be placed before learned Single Judge for necessary orders."
2.9. Dissatisfied therefor, the respondents carried the matter before the Hon'ble Supreme Court of India in Special Leave to Appeal (C) No.4382 of 2024, which came to be dismissed on 23.02.2024. Thereafter, the respondents have complied with the Order dated 25.08.2023 of the learned Single Bench and disbursed salary to the appellant.
2.10. After the final hearing of the writ petition, the learned Single Bench vide Judgment dated 06.09.2024 dismissed W.P.(C) No.989 of 2020 with the following observation:
"***
16. In light of the facts and circumstances of the present case, this Court finds no merit in the current Writ Petition. The petitioner has not succeeded in establishing grounds for interference with the impugned order.
17. However, the opposite parties may consider any alternative arrangements for the petitioner, if available, ensuring that the petitioner extensive experience is effectively utilized.
18. In light of the foregoing, the Writ Petition is dismissed and disposed of in terms of the aforesaid observations."WA No.2733 of 2024 Page 10 of 73
2.11. Being not satisfied, the appellant beseeched for setting aside the Judgment dated 06.09.2024 passed in W.P.(C) No.989 of 2020 and craved for direction(s) to absorb him and in consequence thereof grant all consequential service and financial benefits.
Hearing:
3. The matter was on board under heading "Fresh Admission". Upon hearing Sri Prasanta Kumar Mishra, learned Advocate for the appellant, Sri Bimbisar Dash, learned Additional Government Advocate would submit that after recent decisions of the Hon'ble Supreme Court of India and the appellant being appointed against sanctioned post, this Court may proceed to finally adjudicate the matter.
3.1. Heard Sri Prasanta Kumar Mishra, learned Advocate for the appellant and Sri Bimbisar Dash, learned Additional Government Advocate for the respondents. Since short point is involved, on the consent of the counsel for the parties, this matter is disposed of at the stage of "Fresh Admission".
Rival contentions and submissions:
4. Sri Prasanta Kumar Mishra, learned counsel for the appellant with the above factual backdrop submitted that the learned Single Bench has proceeded to decide WA No.2733 of 2024 Page 11 of 73 the matter on merit as if the appointment of appellant was contractual, but not ad hoc basis against sanctioned post. The learned Single Bench ignored to consider the fact that the appellant has been working as Process Server against vacant sanctioned post in the Office of RTO, Chandikhole since 1997 and construed as the post of Process Server is surplus/redundant.
4.1. Arduously arguing, Sri Prasanta Kumar Mishra, learned Advocate would submit that while the Government felt the post of Process Server against which the appellant has been working as surplus/redundant, it is not aptly appreciated by the learned Single Bench that on the very next date, i.e., 21.12.2019, the RTO shot up a letter to the Transport Commissioner citing necessity of the post of Process Server in the Office of RTO and sought permission for engagement of a Process Server.
4.2. The learned Single Bench without appreciating the documents available on record to show that the appellant was appointed against a vacant sanctioned post on ad hoc basis with notional break of one day since 16.01.1997, misplaced the ratio of decision rendered in Yogesh Mahajan Vrs. Professor R.C. Deka, Director, All India of Medical Sciences, (2018) 3 SCC 218 inasmuch as said reported decision proceeded on the basis that "There is nothing on record to indicate that the appointment of the petitioner on a contractual basis WA No.2733 of 2024 Page 12 of 73 or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services." He continued to urge that though learned Single Bench in its Judgment under the heading "Submission on behalf of the opposite parties" recorded that "The petitioner was continuing as Process Server/Peon temporarily on ad hoc basis in the Office of RTO, Chandikhole with effect from 16.01.1997", referred to paragraph 38 of the Constitution Bench decision of Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1. As if the appointment of the appellant was contractual engagement, the learned Single Bench misdirected himself by applying the ratio of Oshiar Prasad Vrs. Employers in relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand, (2015) 4 SCC 71, which was a case of contractual nature of engagement wherein it has been held that "It is a settled principle of law that absorption and regularisation in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer WA No.2733 of 2024 Page 13 of 73 subsists except for the limited purpose to examine the legality and correctness of its termination."
4.3. It is submitted at the Bar that the decisions so relied on by the learned Single Bench have no relevance to the present set of fact-situation. The present case does not relate to contractual appointment, rather the engagement of the appellant has been against a vacant sanctioned post since 1997.
4.4. The appellant continued to discharge his duty as Process Service beyond December, 2019 when the Government intimated sanction of abolition of post of Process Server instead of considering the Letter dated 11.07.2017 of the RTO clarifying that the position of the appellant was against sanctioned post since 1997 and also in his recommendation vide Letter dated 29.09.2015.
4.5. It is strenuously urgue that the Finance Department Office Memorandum dated 31.08.2019 based on which the Letter dated 20.12.2019 of the Government of Odisha in Commerce and Transport (Transport) Department came to be issued according sanction of abolition of post of Process Server in RTO, Chandikhole, did not contemplate abolition of post of Group-D against which a personnel is engaged.
4.6. Having exploited the appellant since 1997 by entrusting the job of Process Server-cum-Peon against vacant WA No.2733 of 2024 Page 14 of 73 sanctioned post, on the pretext of abolition of such post in 2019, discontinuance of the service of appellant is not only unethical but is unbecoming of a model employer.
5. Sri Bimbisar Dash, learned Additional Government Advocate having conceded referring to paragraph 4 of the counter affidavit filed by State Transport Authority in connection with the contents of the writ petition that "the petitioner was continuing as Process Server/Peon temporarily on ad hoc basis in the Office of the RTO, Chandikhole with effect from 16.01.1997", submitted that in view of policy decision of the State Government vide Finance Department Office Memorandum dated 31.08.2019 to abolish surplus/redundant Group-D post, and in pursuance of Letter No.9131, dated 20.12.2019 of Joint Secretary to Government in Commerce and Transport (Transport) Department, disengagement of the appellant from service was on justifiable reason.
Discussions and analysis:
6. The analysis is divided into two parts to examine:
i. Whether the sanction of abolition of post of Process Server in the Office of RTO, Chandikhole by the Government of Odisha, Commerce and Transport (Transport) Department vide Letter dated 20.12.2019 pursuant to which the appellant was WA No.2733 of 2024 Page 15 of 73 disengaged from service can be held to be legally sustainable?
ii. Whether the judgment dated 06.09.2024 in W.P.(C) No.989 of 2020 is liable to be interfered with in this intra-Court appeal for the reason that the learned Single Bench dismissed the said writ petition based on perverse facts being de hors material on record?
7. Venturing into counter affidavit filed by the Secretary of State Transport Authority, Odisha it comes to fore that:
"4. That in reply to the averment made in Paragraphs-1 to 4 of the writ petition, it is humbly submitted that the petitioner was continuing Process Server/ Peon temporarily on ad hoc basis in the office of the RTO, Chandikhole w.e.f. 16.01.1997 on the condition that the appointment is purely temporary and terminated at any point of time without giving any notice and hence, he cannot claim regularization as he was continuing on temporary basis.
5. That in reply to the averment made in Paragraphs-5 and 6 of the writ petition, it is humbly submitted that the petitioner had made several representations before Opposite Party No.4 for his absorption against regular vacancy under regular establishment. Opposite Party No.3 vide Letter No. X-29/2017-- 1389/TC dated 01.02.2018 requested opposite party No.1, after considering all the relevant facts and law the claims have been rejected by the opposite parties."WA No.2733 of 2024 Page 16 of 73
7.1. Letter vide Memo No.1461, dated 04.03.2002 reveals that the appellant was "engaged as Temporary Process Server in the scale of pay of Rs.2550-55-2660-60-3280 on ad hoc basis. Letter vide Memo No.3953, dated 31.10.2019 reveals that the appellant was engaged as "Process Server temporarily on ad hoc basis" "in the scale of Rs.4750/- to Rs.14680/- plus Grade Pay Rs.1,500/- with usual DA as admissible".
7.2. The RTO, Chandikhole recommended the name of the appellant for absorption in service vide Letter No.5447, dated 29.09.2015 addressed to Transport Commissioner, with the following facts:
"With reference to the subject cited above I am to say that one Sri Ganesh Ch. Patra, Son of Pitainber Patra, At/P.O.:
Alava, P.S.: Patamundai, District: Kendrapara was engaged as Temporary Process Server (Group-D) on 44 days basis since 1997. He belongs to Schedule Caste category and his qualification is under Metric. He has been continuing as Temporary Process Server and his performance is satisfactory. As per Resolution No. 261085/Gen., dated 17.09.2013 of General Administration Department he may be regularized in regular establishment in the existing vacant post of Process Server (Group-D employee) in this office.
In view of the above, necessary approval may kindly be considered in favour of Sri Patra to engage in regular establishment in Group-D vacancy."WA No.2733 of 2024 Page 17 of 73
7.3. Clarification being sought for, the RTO, Chandikhole issued Letter No.2357, dated 11.07.2017 with the following information:
1. The present status of Sri Patra is engaged as Process Server employment of Sri temporarily under 44 days basis Patra
2. The selection process Engagement was made basing on the suitability adopted during his of the applicant considering the application since engagement 1997
3. Whether the YES engagement has been against the sanctioned post
4. Scale of pay attached Scale of pay Rs.4750/- to Rs.14680/- with Grade to the post and the Pay Rs.1500/- as per pay Band S-1 for Group-D present pay and employee. The present Pay of Sri Patra is allowance of Sri Patra Rs.4750/- with Grade Pay of Rs.1500/- with usual DA as admissible.
7.4. Despite such information supplied, by Letter dated 22.10.2018, the STA having asked to furnish details, the RTO, Chandikhole again furnished details regarding the appellant.
7.5. The documents referred to hereinabove evince that the appellant was engaged in the vacant sanctioned post of Peon-cum-Process Server since 1997 till 2019, i.e., around 22 years continuously, maybe on ad hoc basis, with extensions from time to time at interval of 44 days.
It is also pertinent to say that he has been paid on the basis of Scale of Pay with Grade Pay and usual D.A attached to such Process Server.
7.6. Notwithstanding such perennial nature of job without any break (artificial break of one day at 44 days interval WA No.2733 of 2024 Page 18 of 73 is to be ignored), it appears on the basis of the Government of Odisha in Finance Department had issued Office Memorandum No.29913-- FIN-TRY-ESTT- 0011-2017/F., dated 31.08.2019 sanction of abolition of post of Process Server in the Office of RTO, Chandikhole being accorded by the Commerce and Transport (Transport) Department vide Letter No.TRN-FE-MISC- 0026-2019/9131/T, dated 20.12.2019, without taking note of recommendation of the RTO in Letter dated 29.09.2015 read with information supplied in Letter dated 11.07.2017 and Letter dated 05.11.2018, the authority issued Order No.4392, dated 21.12.2019 seeking to disengage the appellant from duties with effect from 21.12.2019.
7.7. The RTO, Chandikhole issued a Letter dated 21.12.2019 eliciting role of Process Server in the Office sought for permission to engage Process Server on daily wage basis for smooth management of his Office.
7.8. Noteworthy here that even after such order being issued disengaging the appellant, Office Order vide Memo No.4292, dated 13.12.2019 of RTO, Chandikhole clearly shows that he is engaged "as Process Server temporarily on ad hoc basis for a period of 44 days with effect from 16.12.2019 to 28.01.2020 in the scale of pay of Rs.4750/- to Rs.14680/- plus Grade Pay Rs.1500/- with usual DA as admissible".
WA No.2733 of 2024 Page 19 of 737.9. At this juncture reference to relevant portion of paragraph 4 of Finance Department Office Memorandum dated 31.08.2019 may be pertinent, which reads as follows:
"4. In the online arrangement for submission of AER, the functionality for submission of information on posts to be terminated by Head of Office, Heads of Department and Administrative Department has not been provided in HRMS (Human Resource Management System) until now. The facility for submission of Schedule-IA, Schedule-IIA and Schedule-IIIA in HRMS is being provided shortly. Before submission of aforesaid Information in HRMS, there is need for assessment by Administrative Departments regarding continuance of sanctioned posts required for delivery of Public Service and termination of some posts, which are otherwise found surplus/redundant over the period of time. Administrative Departments are required to make an in-depth analysis at their level regarding the continuance of sanctioned posts available with them and recommend on the basis of following principles for termination of posts.
a) Termination of redundant posts.--
All Government Offices have certain redundant posts, which have lost their relevance in the changing context of time. For example, the post of „Treasury Sarkar‟ has become redundant in the context of electronic payment being made through Treasuries and the post of „Typist‟ in Issue Section WA No.2733 of 2024 Page 20 of 73 has become redundant in the context of full scale computerization of State Government Offices. Posts in Public Works Department like „Works Sarkar‟, „Gang Mulia‟, „Carpenter‟, „mason‟ and „Road Roller Driver‟ etc. have lost their relevance as Departmental execution of works has been replaced with Contractor led execution of Public Works. Such redundant posts are to be identified and indicated for termination in Schedule-IA, Schedule-IIA and Schedule-IIIA of AER. In case, there are men-in- position against the redundant posts, the Administrative Department will propose such posts for termination immediately after retirement of the personnel holding such posts in Schedule-IIIA of AER in HRMS in the respective year.
b) Termination of vacant Group „D‟ Posts.--
All Group-D posts remaining vacant in any Department/Heads of Department/Head of Office would be identified for termination in the changing context of outsourcing of services/ personnel for watch/ward housekeeping gardening, security service etc. as allowed by Finance Department vide Finance Department Office Memorandum No.37323/F, dated 30.11.2018 and Finance Department Letter No.49134/F, dated 29.11.2010 respectively. All such posts would be indicated for termination in Schedule-IA Schedule-A and Schedule-IIIA of AER.
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7.10. Those posts of Group-D category which remained vacant and keeping abreast of developments in the present day, WA No.2733 of 2024 Page 21 of 73 such posts construed to have rendered redundant were required to be suggested for abolition/termination as per Finance Department Office Memorandum. Group-D post as per criteria specified in said Office Memorandum would come within its purview, if such post like treasury sarkar, carpenter, mason, etc. lost its significance. When the material available on record demonstrates that the role of a Process Server/Peon is indispensable and the service of the appellant being utilised since 1997 till 2020 with a Scale of Pay, Grade Pay and D.A., there cannot be any doubt in mind that the competent authority of administrative department has not applied his mind while suggesting for abolition of the post of Process Server in the Office of RTO, Chandikhole. The letter of RTO seeking permission for engaging Process Server on the very next date of abolition depicts the necessity of Process Server and Peon.
7.11. One of the criteria specified in the said Office Memorandum is that in case there are men-in-position against the redundant posts, the Administrative Department will propose such posts for termination immediately after retirement of the personnel holding such posts. As the appellant has been in position since 1997 and was continuing, the post of Process Server- cum-Peon could not be suggested as redundant. It appears the administrative department has ignored to WA No.2733 of 2024 Page 22 of 73 take into consideration the nature of posts those are illustrated at paragraph 4 of the Office Memorandum to be construed as redundant or surplus.
7.12. When it is manifest from the documents that the appellant has been serving in the Office of RTO, Chandikhole since 1997 as Process Service on ad hoc basis being paid Scale of Pay, Grade Pay and D.A. against a vacant sanctioned post, the Letter dated 20.12.2019 of the Commerce and Transport (Transport) Department conveying sanction of abolition of post Process Server and Peon in the Office of RTO, Chandikhole is not in consonance with the norms specified in the Finance Department Office Memorandum dated 31.08.2019.
7.13. To take such view this Court gets aid of Letter dated 21.12.2019 of the RTO, Chandikhole, wherein it has been clearly stated that the Office of RTO is running with shortage of staff and the services of the Process Server play significant role for movement of records for smooth administration and management of his office.
7.14. Under the above premise, it may be apposite to say that the abolition of post of Process Service as per Letter dated 20.12.2019 of the Commerce and Transport (Transport) Department being outcome of non- application of mind, is a fiat of arbitrary exercise of WA No.2733 of 2024 Page 23 of 73 power and the decision contained by the Commerce and Transport (Transport) Department cannot withstand judicial scrutiny being contrary to the criteria specified in the Finance Department Office Memorandum dated 31.08.2019.
8. The undisputed fact remains that the appellant has been serving as the Process Server-cum-Peon for around 22 years. Without recognising the satisfactory performance of the appellant, as submitted by the RTO vide Letter dated 29.09.2015 along with information supplied by RTO by Letter dated 11.07.2017 that against vacant sanctioned post he has been working since 1997 with scale of pay, Grade Pay and usual D.A., as if the post is redundant the decision of the Government in Commerce and Transport (Transport) Department to abolish the post is immature. Since the appellant has been in position of Peon-cum-Process Server since 1997, the decision to abolish such post of Process Server in the Office of RTO, Chandikhole is contrary to paragraph 4(b) of the Office Memorandum dated 31.08.2019 for the reason that said post could not be stated as "remaining vacant" so as to identify it "for termination in the changing context of outsourcing of services/personnel".
8.1. It is significant that the case of the appellant for absorption was recommended on 29.09.2015 and further information was furnished by the RTO to the WA No.2733 of 2024 Page 24 of 73 concerned authority on being asked to supply on 11.07.2017 stating clearly that he has been paid Scale of Pay, Grade Pay and D.A. being engaged against vacant sanctioned post. It is further clarified that on being found suitable in a selection process adopted for engagement, in consideration of application the appellant has been working since 1997.
8.2. Concept of regularization derives its roots from the principles of equity, justice and fairness. The essence of employment and the rights conferred thereof on the employees cannot merely be determined by the initial terms of appointment when the actual course of employment has evolved significantly over a period of time. Hence, rendering service continuously for considerable period has transcended the ad hoc employment for consideration to be brought over to regular establishment. Continuous service of the appellant against vacant sanctioned posts as ad hoc appointees and his selection through a process of selection constitute a substantive departure from the temporary and ad hoc nature of their initial appointment. Hence, his service conditions warrant reclassification from temporary/ad hoc to regular.
8.3. The Hon'ble Supreme Court of India dealing illuminatingly with the concept of regularization, in the WA No.2733 of 2024 Page 25 of 73 case of Narendra Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, said as follows:
"The purpose and intent of the decision in Umadevi (3), (2006) 4 SCC 1 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) (supra), 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."
8.4. 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) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still WA No.2733 of 2024 Page 26 of 73 continuing, the same cannot be treated as an „illegal engagement‟, rather it may be nomenclatured as an „irregular engagement‟.
13. In State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410, wherein a distinction has been made with regard to „irregular‟ and „illegal‟ engagement, referring to the exception carved out in Umadevi (3) mentioned supra, in paragraph 12 of the said judgment it has been stated as follows:
„12. The third aspect of Umadevi (3) which bears notice is the distinction between an „irregular‟ and „illegal‟ appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken
(a) was not in exigencies of administration; or
(b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or WA No.2733 of 2024 Page 27 of 73
(c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides.‟ ***"
8.5. 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 as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows:
*** WA No.2733 of 2024 Page 28 of 73
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 13.03.2015 [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 Government or its instrumentality should have employed the employee and continued him in service voluntarily WA No.2733 of 2024 Page 29 of 73 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 consideration. In our opinion, when the facts such as the ones obtaining WA No.2733 of 2024 Page 30 of 73 in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision.
The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature.
However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has WA No.2733 of 2024 Page 31 of 73 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.‟***"
8.6. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716; and Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022.
8.7. In Union of India Vrs. Central Administrative Tribunal, (2019) 4 SCC 290 the following is the observation:
"25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Umadevi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 („the Regularisation Rules‟) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the WA No.2733 of 2024 Page 32 of 73 State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Umadevi [(2006) 4 SCC 1], ML Kesari [(2010) 9 SCC 247] and Narendra Kumar Tiwari [(2018) 8 SCC 238].
26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority list in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be WA No.2733 of 2024 Page 33 of 73 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."
8.8. 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. ***"
8.9. It may be apt to refer to Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of the Judgment runs as follows:
"7. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no WA No.2733 of 2024 Page 34 of 73 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 are cured. Regularization, however, does not necessarily connote permanence.WA No.2733 of 2024 Page 35 of 73
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, 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 WA No.2733 of 2024 Page 36 of 73 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 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 WA No.2733 of 2024 Page 37 of 73 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."
8.10. 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 the matter of Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407 the observation of this Court runs as follows:
"12. Similarly, in the case of Amarendra Kumar Mahapatra and Others Vrs. State of Odisha and Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the Supreme Court was of the opinion that the appellants were entitled to regularization in service having regard to the fact that they have rendered long years of service on ad hoc basis.
13. In the case at hand, it can be ascertained that the petitioner was appointed against a substantive vacant post and he had been discharging his duties WA No.2733 of 2024 Page 38 of 73 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."
8.11. The view of Hon'ble Supreme Court of India expressed in the case of Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826 = 2024 LiveLaw (SC) 1032, is as follows (extracted from SCC):
"20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent judgment of this Court in Vinod Kumar Vrs. Union of India, (2024) 1 SCR 1230, it was held that held that procedural formalities cannot be used to deny WA No.2733 of 2024 Page 39 of 73 regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgment have been reproduced below:
„6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).
7. The judgment in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written WA No.2733 of 2024 Page 40 of 73 examinations or interviews as in the present case. ***"
21. The High Court placed undue emphasis on the initial label of the appellants‟ engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.
22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers‟ rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.WA No.2733 of 2024 Page 41 of 73
23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO‟s Multinational Enterprises Declaration [International Labour Organization-- Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy] encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment.
24. The landmark judgment of the United State in the case of Vizcaino Vrs. Microsoft Corporation, 97 F.3d 1187 (9th Cir. 1996) serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and WA No.2733 of 2024 Page 42 of 73 the corresponding rights and benefits. It highlights the judiciary‟s role in rectifying such misclassifications and ensuring that workers receive fair treatment.
25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:
Misuse of "Temporary" Labels:
Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
Arbitrary Termination:
Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
Lack of Career Progression:
Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain WA No.2733 of 2024 Page 43 of 73 stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
Using Outsourcing as a Shield:
Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees.
This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even WA No.2733 of 2024 Page 44 of 73 in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment‟s explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative for Government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, Government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
8.12. In the case of Shripal Vrs. Nagar Nigam, 2025 SCC OnLine SC 221 = 2025 LiveLaw (SC) 153 referring to observations rendered in Jaggo (supra), the Hon'ble WA No.2733 of 2024 Page 45 of 73 Supreme Court of India has been pleased to clarify that (extracted from SCC):
"16. The High Court did acknowledge the Employer‟s inability to justify these abrupt terminations. Consequently, it ordered re-engagement on daily wages with some measure of parity in minimum pay. Regrettably, this only perpetuated precariousness: the Appellant Workmen were left in a marginally improved yet still uncertain status. While the High Court recognized the importance of their work and hinted at eventual regularization, it failed to afford them continuity of service or meaningful back wages commensurate with the degree of statutory violation evident on record.
17. In light of these considerations, the Employer‟s discontinuation of the Appellant Workmen stands in violation of the most basic labour law principles. Once it is established that their services were terminated without adhering to Sections 6E and 6N of the U.P. Industrial Disputes Act, 1947, and that they were engaged in essential, perennial duties, these workers cannot be relegated to perpetual uncertainty. While concerns of municipal budget and compliance with recruitment rules merit consideration, such concerns do not absolve the Employer of statutory obligations or negate equitable entitlements. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period.WA No.2733 of 2024 Page 46 of 73
18. The impugned order of the High Court, to the extent they confine the Appellant Workmen to future daily- wage engagement without continuity or meaningful back wages, is hereby set aside with the following directions:
I. The discontinuation of the Appellant Workmen‟s services, effected without compliance with Section 6E and Section 6N of the U.P. Industrial Disputes Act, 1947, is declared illegal. All orders or communications terminating their services are quashed. In consequence, the Appellant Workmen shall be treated as continuing in service from the date of their termination, for all purposes, including seniority and continuity in service.
II. The Respondent Employer shall reinstate the Appellant Workmen in their respective posts (or posts akin to the duties they previously performed) within four weeks from the date of this judgment. Their entire period of absence (from the date of termination until actual reinstatement) shall be counted for continuity of service and all consequential benefits, such as seniority and eligibility for promotions, if any.
III. Considering the length of service, the Appellant Workmen shall be entitled to 50% of the back wages from the date of their discontinuation until their actual reinstatement. The Respondent Employer shall clear the aforesaid dues within three months from the date of their reinstatement.WA No.2733 of 2024 Page 47 of 73
IV. The Respondent Employer is directed to initiate a fair and transparent process for regularizing the Appellant Workmen within six months from the date of reinstatement, duly considering the fact that they have performed perennial municipal duties akin to permanent posts. In assessing regularization, the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these long time employees are not indefinitely retained on daily wages contrary to statutory and equitable norms."
8.13. It is apt to refer to the anxious consideration shown by the Madras High Court in N. Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016, vide Judgment dated 22.04.2022 rendered with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of the employees, whose services have been utilized by the Government for a substantial 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 WA No.2733 of 2024 Page 48 of 73 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 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 WA No.2733 of 2024 Page 49 of 73 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."
8.14. Learned Single Judge of this Court in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005 [reported at 2016 (I) ILR-CUT 373], made the following observation:
"7. In Binan Kumar Mohanty Vrs. Water and Land Management Institute (WALMI), 2015 (I) OLR 347 referring to Kapila Hingorani Vrs. State of Bihar, (2003) 6 SCC 1 the apex Court held that the Government companies/public sector undertakings being „States' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 WA No.2733 of 2024 Page 50 of 73 years, keeping in view the ratio decided in Kopila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable.
8. In Narendra Kumar Ratha and Others Vrs. State of Odisha and Others, 2015 (I) OLR 197, this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in public offices. The word „employment or appointment' cover not merely the initial appointment, but also other attributes like salary, increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made in accordance with the provisions and procedure envisaged under the law and guidelines governing the field.
9. In Prabodh Verma and Others Vrs. State of U.P. and Others, (1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government.
10. Similar view has also been taken by the apex Court in Km. Neelima Mishra Vrs. Harinder Kaur Paintal WA No.2733 of 2024 Page 51 of 73 and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402 and E.P. Royappa Vrs. State of Tamil Nadu and Another, (1974) 4 SCC 3. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney Vrs. Union of India, 1992 Supp. (3) SCC 217 = AIR 1993 SC 477."
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.
8.15. In identical fact situation where in the context of 89 days ad hoc engagement in the case of Ramesh Chandra Mohapatra Vrs. State of Odisha, 2022 SCC OnLine Ori 2587 this Court observed as follows:
"3. The background facts are that the Petitioners were appointed as a Field Man Demonstrator in the Office of the Soil Conservation Officer (SCO), Koraput WA No.2733 of 2024 Page 52 of 73 Division by an order dated 2nd April, 1992. The said order, which was common to the Petitioners and four others, reads as under:
„The following outsiders are appointed as Field Man Demonstrator on ad hoc basis for a period of 89 days (eighty-nine) with effect from the date they report themselves for duties in the respective offices noted against them in the time scale of pay Rs.800-15-1010-EB-20-1150/- P.M. with usual D.A. as admissible under rules. The candidate should join the post within 7 days from the date of issue of this order failing which the appointment will be treated as automatically cancelled. The appointment is purely temporary and terminable at any time without assigning any reason thereof. This appointment will have no statutory value to claim for regular appointment either in the same post or in any other post in the Department in future.
4. Subsequently, by an order dated 20th November 1993, Ramesh Chandra Mohapatra was appointed as Junior Soil Conservation Assistant "purely on ad hoc basis for a period of 89 (eighty-nine) days in the scale of pay of Rs.950/- to 1500/- per month and all other allowances as admissible under the Rules from time to time. The usual clause that he would not have any legal claim to get a regular job in the Department by virtue of such ad hoc appointment was inserted. He was then deputed to work under the IFAD assisted Orissa Tribal Development Project, Kashipur by an order dated 23rd August 1995 in the newly created post of Junior Soil Conservation Assistant.WA No.2733 of 2024 Page 53 of 73
***
13. The orders appointing each of the above persons, the corresponding order of the OAT and that of the High Court and the Supreme Court of India have all been enclosed with the rejoinder affidavit. Specifically, in SLP (C) No.32178 of 2014 (State of Orissa Vrs. Prahallad Sahoo), the observation of the Supreme Court in its order dated reads as under:
„*** Though the appointments of the respondents were irregular as they were not sponsored by the Employment Exchange, we do not intend to interfere with the judgment of the High Court in view of the long period of service rendered by the respondents. The question of law raised in these petitions is left open. The special leave petitions are dismissed accordingly.‟
14. In the case of Harihar Prusty, this Court while dismissing the State‟s W.P. (C) 9475 of 2016 by the order dated 30th January, 2018 declined to interfere with the order dated 15th September 2015 passed by the OAT in O.A. No.2137(C) of 2001 whereby the OAT had directed his regularization. Likewise, in the case of Manoj Kumar Parida, the order of the OAT was affirmed by this Court by an order dated 3rd December 2019 in W.P.(C) No.1366 of 2014.
***
17. The Court has compared the appointment orders issued to Prahallad Sahoo, Harihar Prusty and the present Petitioners and it finds that they are no different. The appointment orders of Prahallad WA No.2733 of 2024 Page 54 of 73 Sahoo and Harihar Prusty also refer to them as „outsiders‟ and they were appointed as Field Man Demonstrator in a scale of pay. The wording of their appointment letters is no different from that of the present Petitioners. As far as the cadres are concerned, the Petitioners belong to the Soil Conservation Technical Cadre to which Prahallad Sahoo and Harihar Prusty belong. Therefore, there can be no justification for treating the present Petitioners differently. Meanwhile, as already pointed out even by the Government, another employee Subasish Sarangi who was also earlier Field Man Demonstrator has been reinstated in service pursuant to the order passed by this Court in W.P.(C) No.31174 of 2020.
18. With all these cases being identical and that the aforementioned three persons who have been reinstated being junior to the present Petitioners, there can be no justification for treating the present Petitioners differently.
19. Consequently, both these writ petitions are allowed.
The orders dated 20th September, 2000 dispensing with the services of the present two Petitioners are hereby set aside. The impugned order of the OAT is also set aside. The Petitioners are directed to be reinstated in service. Necessary orders be issued by the concerned authorities within a period of eight weeks."
Conclusion:
9. Given the undisputed fact that the appointment of the appellant against vacant sanctioned post of Process WA No.2733 of 2024 Page 55 of 73 Server temporarily on 44 days basis (artificial/notional break of one day) extended from time to time since 1997 till 2020 on assessment of suitability upon consideration of application of appellant should not have been abolished by the Commerce and Transport (Transport) Department vide Letter dated 20.12.2019 as the same runs counter to the norms specified in the Finance Department Office Memorandum dated 31.08.2019.
9.1. This apart, much prior to such decision to abolish the post of Process Server in the Office of RTO, Chandikhole, the case of the appellant was referred to authority concerned for absorption vide Letter dated 29.09.2015 read with subsequent Letter dated 11.07.2017 furnishing information. The Letter dated 21.12.2019 of the RTO, Chandikhole issued even after abolition clinches that there is requirement of Process Server and said letter emanates that the RTO recognises importance of such post.
9.2. Under the above perspective, irresistible conclusion can be drawn that there is lack of application of mind and non-consideration of material while taking decision to abolish sanctioned post, particularly when the appellant was in position since 16.01.1997.
10. By the time the post of Process Server in the Office of RTO, Chandikhole was sought to be abolished pursuant WA No.2733 of 2024 Page 56 of 73 to Finance Department Office Memorandum dated 31.08.2019, the appellant had already served in the said Office as Temporary Process Server against vacant sanctioned post with Scale of Pay, Grade Pay and usual D.A. for more than two decades without intervention by way of order of Court or Tribunal. It is not in dispute his engagement was based on assessment of suitability on consideration of application (as affirmed by the authority vide Letter dated 11.07.2017 of RTO), therefore, the appointment could not be said to be irregular or illegal.
10.1. In the above circumstances, the following norms set forth by the Constitution Bench in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 does require to be adhered to:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, (1967) 1 SCR 128 = AIR 1967 SC 1071, R.N. Nanjundappa, (1972) 1 SCC 409 = (1972) 2 SCR 799 and B.N. Nagarajan, (1979) 4 SCC 507 = (1979) 3 SCR 937 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-WA No.2733 of 2024 Page 57 of 73
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 should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
10.2. Culling out above paragraph from Umadevi (supra), in the case of Vinod Kumar Vrs. Union of India, (2024) 1 SCR 1230 = 2024 INSC 332 it has been indicated as follows:
"4. The appellants have approached this Court arguing that the High Court erred in its judgment by failing to recognize the substantive nature of their duties, which align with regular employment rather than the temporary or scheme-based roles they were originally appointed for. Furthermore, their promotion by a regularly constituted Departmental Promotional Committee, the selection process they WA No.2733 of 2024 Page 58 of 73 underwent, and the continuous nature of their service for over a quarter of a century underscored their argument for regularization and that the High Court has incorrectly applied the principles from the case of Uma Devi (supra) to their situation.
***
8. In light of the reasons recorded above, this Court finds merit in the appellants‟ arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations."
10.3. In Sheo Narain Nagar Vrs. State of Uttar Pradesh, (2017) 11 SCR 138, the Hon'ble Supreme Court recognized such employment on temporary status as on exploitative terms. The pertinent observation made in the said case is quoted hereunder:
"8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has WA No.2733 of 2024 Page 59 of 73 emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, l6 read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara Vrs. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really WA No.2733 of 2024 Page 60 of 73 implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Umadevi (supra).
9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants.
However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.
WA No.2733 of 2024 Page 61 of 7310. The High Court dismissed the writ application relying on the decision in Umadevi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred with effect from 02.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Umadevi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 02.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 02.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today."
10.4. It is not the case of the respondents that the appellant has not undergone process of selection. This is not a case of backdoor entry. In the present case, the appellant has served the Office of RTO for more than two decades against sanctioned post. On the date of taking decision to abolish the post, the appellant was in position and had already served for more than 20 years since 16.01.1997 till 20.12.2019. Added to the above, he WA No.2733 of 2024 Page 62 of 73 was given Scale of Pay with Grade Pay and D.A. Having found that the decision to abolish the post of Process Server in the Office of RTO, Chandikhole in the foregoing paragraphs being arbitrary and non-application mind to the germane factors, taking note of ratio of decisions of different Courts on the subject-matter in similar facts, this Court is of the considered view that injustice has been meted out to the appellant. The appellant is entitled to be considered for absorption in the post of Process Server.
11. As is argued by the counsel for the appellant and discussed above, the following perversity in settlement of facts is perceived on bare reading of the impugned judgment dated 06.09.2024 of the learned Single Bench:
i. The conclusion of the learned Single Bench proceeded as if the appointment of the appellant is contractual one and, therefore, reliance on the ratio of decisions in Yogesh Mahajan Vrs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, (2018) 3 SCC 218; paragraph 38 of Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1; and Oshiar Prasad Vrs. Employees in relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand, (2015) 4 SCC 71 rendered in the context of contractual engagement and WA No.2733 of 2024 Page 63 of 73 regularisation thereof does not apply to the fact-
situation of the present case.
ii. Though the submission of the appellant was taken note of at paragraph 3 in the impugned judgment to the effect that it is the policy by virtue of the Finance Department Office Memorandum dated 31.08.2019 to terminate redundant/surplus posts in the changing context of outsourcing, at paragraph 11 it has been concluded that, "Further, the employer, in the present case, has not taken a policy decision to hire outsourced staff suiting the organisational need."
This observation posits contrary to material on record. From paragraph 4(b) of the Office Memorandum dated 31.08.2019 the policy of the Government can be discernible that the "termination of vacant Group-D posts" is on account of "changing context of outsourcing of services/personnel for watch-ward, housekeeping, gardening, security service, etc.". It may also be taken note of that the RTO in his Letter on the very next date (21.12.2019) of issue of Letter dated 20.12.2019 by the Commerce and Transport (Transport) Department abolishing the post of Process Server, has sought for permission to WA No.2733 of 2024 Page 64 of 73 engage "one Process Server to work on daily wages basis for smooth management" of his Office.
iii. At paragraph 7 of the judgment dated 06.09.2024 it has been stated as follows:
"Since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to claim regularisation."
Comparing the Office Orders dated 04.03.2002, 31.10.2019 and 13.12.2019 (Annexure-1 series to the writ petition) it is unequivocal that the appellant has been engaged as Process Server temporarily with one day artificial/notional break at interval of 44 days, but he was paid on the basis of Scale of Pay, Grade Pay and usual D.A. attached to the said post.
iv. At paragraph 14 of the judgment dated 06.09.2024 the learned Single Bench made the following observation:
"On the basis of the terms and conditions visible on record coupled with the honorary status of the compensation having been accepted by the petitioner throughout, in the considered opinion of this Court, it is not open for the petitioner now to approach the Court with a request to regularise him to the concerned post irrespective of the fact as to WA No.2733 of 2024 Page 65 of 73 whether he has continued for quite some time. Mere continuance in service as a contractual employee would not give any leverage to the petitioner to claim as if he is a permanent employee."
It appears material de hors record has been considered. The appellant has been engaged in the post of Process Server against vacant sanctioned post and was being paid as per Scale of Pay attached to the said post besides Grade Pay and D.A. Since 1997 he has been engaged in the said post with artificial break at every 44 days.
11.1. Without delving any further to search out infirmity in finding of fact by the learned Single Bench, it would suffice to say that the judgment dated 06.09.2024 is liable to be intervened. In view of overwhelming material available on record as discussed in the foregoing paragraphs, the facts on the issue of nature of work, the perennial nature of work, continuous working of the appellant and need for engagement of such Process Server in the office for smooth administration, lead this Court to opine that there is merit in the appeal filed by the appellant. This is a case of wrongful denial of employment and regularization or absorption in the position held since 1997, for no fault of the appellant.
11.2. After taking note of judgments rendered in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1, State WA No.2733 of 2024 Page 66 of 73 of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, &c. the Hon'ble Supreme Court in the case of Neelima Srivastava Vrs. State of Uttar Pradesh, 2021 SCC OnLine SC 610 observed:
"33. By a majority decision in Naresh Shridhar Mirajkar Vrs. State of Maharashtra, AIR 1967 SC 1 has laid down the law in this regard as under:
„When a Judge deals with matters brought before him for his adjudication, he first decides questions, of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court."
11.3. In N. Ramachandra Reddy Vrs. State of Telangana, (2019) 11 SCR 792 it has been restated as follows:
"43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra-Court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same."
11.4. In Management of Narendra & Company Pvt. Ltd. Vrs.
Workmen of Narendra & Company, (2016) 3 SCC 340 it has been observed as follows:
WA No.2733 of 2024 Page 67 of 73"Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
11.5. In Wander Ltd. Vrs. Antox India (P) Ltd., 1990 Supp. SCC 727 following is the observation:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the WA No.2733 of 2024 Page 68 of 73 trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. Vrs. Pothan Joseph, (1960) 3 SCR 713 = AIR 1960 SC 1156: (SCR 721) „*** These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vrs. Jhanaton,1942 AC 130:
„*** the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.‟ ***'***"
11.6. In Anindita Mohanty Vrs. The Senior Regional Manager, H.P. Co. Ltd., Bhubaneswar, 2020 (II) ILR-CUT 398 this Court had the occasion to examine the scope of intra- Court appeal and observed as follows:
"*** Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This writ appeal has been nomenclature as an application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra-Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 SCC 52, Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge WA No.2733 of 2024 Page 69 of 73 of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.
In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram Singh reported in (2006) 13 SCC 449, it is held that in an intra-Court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai Vrs. Nilkanth Dhondiba Chavan reported in (2005) 6 SCC 243. In the case of Commissioner of Income Tax Vrs. Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 SCC 538, it is held that the jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act concerned (Income Tax Act) and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed.
Thus a writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single WA No.2733 of 2024 Page 70 of 73 Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench."
11.7. With such delineated scope laid down with respect to consideration of writ appeal, this Court finds that there is factual perversity apparent on the face of judgment dated 06.09.2024 of the learned Single Bench. Therefore, it is felt expedient to show indulgence in said judgment.
12. For the reasons ascribed supra and in the light of discussions made in the foregoing paragraphs and bearing in mind the scope for interference while sitting in intra-Court appeal filed under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948, this Court sets aside the conclusions of the learned Single Judge vide Judgment dated 06.09.2024 rendered in W.P.(C) No.989 of 2020.
WA No.2733 of 2024 Page 71 of 7313. Having said that the decision of the Government of Odisha in Commerce and Transport (Transport) Department vide Letter dated 20.12.2019 abolishing of post of Process Server in the Office of Regional Transport Officer, Chandikhole is arbitrary and outcome of non- application of mind and consideration of non-germane factors, this Court holds that the appellant is entitled to be considered for absorption in the said sanctioned post against which the appellant has been continuously working since 16.01.1997. Accordingly, Order No.4392, dated 21.12.2019 issued by the RTO, Chandikhole disengaging the appellant in terms of the Finance Department Office Memorandum dated 31.08.2019 read with Letter dated 20.12.2019 of the Commerce and Transport (Transport) Department from duties with effect from 21.12.2019 is hereby set aside.
14. In the wake of the aforesaid discussions, the Judgement dated 06.09.2024 rendered in W.P.(C) No.989 of 2020 by a learned Single Bench is hereby set aside and the respondents are hereby directed to carry out the exercise as discussed hitherto and consider the service rendered by appellant for regularisation as he has been in the position against sanctioned post since 16.01.1997.
14.1. As the Order No.4392, dated 21.12.2019 of the RTO is set aside, the appellant, if has already been disengaged, he is to be reinstated in the same position forthwith WA No.2733 of 2024 Page 72 of 73 treating as if Letter dated 20.12.2019 had never been issued.
14.2. The appellant is also entitled for consequential service and financial benefits, which shall be granted to him within a period of three months from date. Needless to say that all legitimate dues payable as per law be paid to the appellant within the aforesaid period.
15. In the result, this writ appeal is allowed and all pending interlocutory applications, if any, shall also stand disposed of. As a consequence thereof, the writ petition also stands allowed. In the circumstances, there shall be no order as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN) CHIEF JUSTICE JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-Charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-May-2025 14:20:21 High Court of Orissa, Cuttack The 13th May, 2025//Aswini/Laxmikant/Suchitra WA No.2733 of 2024 Page 73 of 73