Bhikari Charan Sethi vs State Of Odisha
2025 Latest Caselaw 6528 Ori

Orissa High Court

Bhikari Charan Sethi vs State Of Odisha on 2 April, 2025

               ORISSA HIGH COURT : CUTTACK

                   W.P.(C) No.24975 of 2017

              In the matter of an Application under
     Articles 226 and 227 of the Constitution of India, 1950

                             ***

Bhikari Charan Sethi Aged about 40 years Son of Sri Kumara Sethi At: Jankia, P.S.: Kanasa District: Puri At present staying At: Malipada Primary Health Centre District: Khordha. ... Petitioner

-VERSUS-

1. State of Odisha Represented though Commissioner-cum-Secretary Helath Department Secretariat Building Sachivalaya Marg Bhubaneswar, District: Khordha.

2. National Rural Health Mission Represented by Director At: Unit VIII, Nayapalli Bhubaneswar, District: Khordha.

3. Governing Body of Rogi Kalyana Samiti Primary Health Centre Represented by Chairman, Panchayat Samiti-cum-

President, Zilla Parishad At: Malipada, District: Khordha.

4. Medical Officer (Ayush) Primary Health Centre Malipada and Golobai At: Malipada, District: Khordha.

5. Chief District Medical Officer Khordha At/P.O./District: Khordha. ... Opposite parties

Counsel appeared for the parties:

For the Petitioner         : Ms. Sujata Jena
                             Advocate

For the Opposite party     : Mr. Dayanidhi Lenka,
Nos.1, 3 and 4               Additional Government Advocate

For the Opposite party     : Mr. Bibhu Prasad Tripathy
No.2                         Senior Advocate
                             assisted by
                             Mr. Narayan Bark,
                             Advocate

P R E S E N T:

                           HONOURABLE
                 MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 02.04.2025 :: Date of Order : 02.04.2025

O RDER

1. The Petitioner belonging to Scheduled Caste Community and economically weak section of the society, was engaged to work as sweeper at Malipada and Golabai, Primary Health Centre (PHC) since December, 2010 on daily wage basis. Having approached, the Authority concerned a letter No.1, dated 12.10.2010 was issued by Medical Officer, Ayush, apprising the Medical Officer-In- charge of Primary Health Centre (PHC), Haladia, Khurda about lack of basic amenities and requirement of sweeper for cleaning the hospital, requested for appointment of support staff including sweeper for the Primary Health Centre (N), Golobai, Khurda.

1.1. Accordingly, in the Governing Body Meeting of the Rogi Kalayan Samiti (RKS), Primary Health Centre (N), Malipada held on 21.12.2011, the engagement of Sri Bhikari Chanran Sethi (Petitioner) to work as sweeper on daily wage basis was considered.

1.2. The petitioner was verbally directed by the Medical Officer, Haladia to work as sweeper in the Primary Health Centre on daily wage basis which fact was taken note of in the Governing Body Meeting as referred to above. He was allowed to sign the staff attendance register on each day he worked.

1.3. Pursuant to aforesaid resolution of the Governing Body, the petitioner continued to work in the Primary Health Centre and he was allowed to work till October 2017.

1.4. The petitioner is stated to have filed representation before the Chief District Medical Officer (CDMO), Khordha for taking steps to regularise his service, as his service was required daily. Since the Authority did not pay any heed to, the petitioner approached this Court by way of the present writ petition with the following prayers:

"In the circumstances petitioner prays that the Hon'ble Court may be graciously pleased to admit this writ petition, issue notice to the opp. parties to show cause as to why the representation of the petitioner for regularisation of his services and payment of wages has not been considered as on date and if the Opp. Parties failed to show cause or show insufficient cause, the Hon'ble Court upon hearing the parties may be further pleased to allow this writ petition by issuing a writ of mandamus or any other appropriate writ directing the Opp. Parties to regularise the petitioner in the post of sweeper of Malipada and Golabai P.H.C.

And may be further pleased to pass such other order/orders, direction/directions as may be deem fit and proper in the interest of justice."

2. Counter affidavit in response to the averments made in the writ petition has come to be filed on behalf of the opposite party No.5, namely, Chief District Medical Officer, Khurdha ("CDMO", for short).

3. Since this matter has been pending since 2017 and the petitioner is without any livelihood, on the consent of counsel for the parties this matter is taken up for final hearing.

3.1. Accordingly, heard Smt. Sujata Jena, learned Advocate for the petitioner and Sri Dayanidhi Lenka, learned Additional Government Advocate for the opposite party Nos.1, 3, 4 and 5 and Sri Bibhu Prasad Tripathy, learned Senior Advocate along with Sri Narayan Barik, learned Advocate for the opposite party No.2 who has declined to file separate counter affidavit, but sought to adopt the counter affidavit filed by the CDMO.

4. Smt. Sujata Jena, learned Advocate appearing for the petitioner submitted that the opposite parties ignoring the obligation of the State as envisaged under Article 38 of the Constitution of India, neglected to consider the plight of the petitioner, who is engaged to serve the Primary Health Centre ("PHC", for brevity) as "sweeper". It is not denied or disputed that such work of sweeper is required daily and perennially without any break.

4.1. She made a reference to the "Revised Guidelines for Utilisation of Untied Fund, Annual Maintenance Grant and RKS Grant at different facilities", of Rogi Kalyan Samiti ("RKS", abbreviated) in Public Health Facilities circulated vide Letter dated 25.09.2008 issued by

Mission Directorate, National Rural Health Mission, Odisha, Department of Health and Family Welfare, Government of Odisha and submitted that housekeeping and cleanliness service are one of the areas which are identified for annual maintenance grant under the Rogi Kalyan Samiti Grant. She laid stress on the following portion of said Revised Guidelines:

"Health Sector reform under the National Rural Health Mission (NRHM) aims at increasing the functional, administrative and financial autonomy of various field units. Accordingly provisions have been made for these field units at different levels in the form of untied fund, annual maintenance grant and Rogi Kalyan Samiti grant to undertake any innovative or responsive facility specific need based activity.

Suggested Areas where Untied Fund, Annual Maintenance Grant, RKS Grant can be utilised:

Given below are some of the suggested activities which can be taken up with the fund. Other than these activities, RKS may take up any activity based on local specific needs with the given funds except activities mentioned in Annexure-A. Each activity planned by the facility should have clear rationale so that the impact of the untied fund/annual maintenance/RKS grant can be assessed distinctively.

***

V) Maintenance of cleanliness, sanitation & beautification of campus Out-sourcing of hospital housekeeping and cleanliness services, Ad hoc payment for cleaning of centres after child birth, meeting day to day expenses on maintaining cleanliness viz. Brooms, Bleaching powder & Disinfectants, Buckets, Mugs, Spade, Waste

disposal bins, Monthly/Bimonthly campus cleaning drive involving local volunteers, wall hanging & clock at waiting space, clearing of larvicidal measures for stagnant water, etc."

4.2. It is, therefore, vehemently contested by Smt. Sujata Jena, learned Advocate that the opposite parties- Authorities have acted arbitrarily and left the petitioner in a lurch.

4.3. Advancing further argument, she would submit that denial of rightful opportunity to the petitioner to sustain and survive by providing work the action of the opposite parties squeezed his right to earn a livelihood, which is fundamental for their survival and dignity, thereby the Authorities have caused social injustice. The failure to regularize the service of the petitioner perpetuated social inequality and economic disparity, undermining the constitutional mandate for social justice. The uncertainty surrounding employment status demoralised the petitioner leading to destitution.

4.4. She emphatically submitted that seeking to replace the petitioner with the personnel from outside without considering the representation of the petitioner and recognizing his contribution to the welfare of the PHC since 2010, is unwholesome and such actions are not expected from model employer, like Health Department. Therefore, she suggested issue of writ of mandamus for

effective and prompt disposal of the representation dated 09.11.2017 (Annexure-5) pending.

5. Sri Dayanidhi Lenka, learned Additional Government Advocate appearing for the opposite party Nos.1, 3, 4 and 5, opposing the contention of Smt. Sujata Jena, learned counsel appearing for the petitioner submitted that there is no provision for regularising a person working under Rogi Kalyana Samiti on daily wages. It is stated that since the such post is not a regular sanctioned post no right to employment could be claimed by the petitioner. The engagement of the petitioner is itself "irregular", which does not warrant consideration for regularisation in service.

6. Sri Bibhu Prasad Tripathy, learned Senior Counsel along with Sri Narayan Barik, learned Advocate appearing for the opposite party No.2-National Rural Health Mission supported the arguments advanced by the learned Additional Government Advocate appearing for the other opposite parties and submitted that the representation of the petitioner being kept pending since long, the Authorities concerned may consider the same, approach is made by the petitioner with the direction of this Court.

7. In reply to the stand of the opposite parties, Smt. Sujata Jena, learned Advocate referred to paragraphs 5, 6, 7 and 8 of Vinod Kumar and others Vrs. Union of India and

others, reported in (2024) 1 SCR 1230 = (2024) 9 SCC 327, wherein the Hon'ble Supreme Court has been pleased to observe as follows:

"5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.

6. The application of the judgment in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 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 State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1.

7. The judgment in State of Karnataka Vrs.

Umadevi (3), (2006) 4 SCC 1 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 examinations or interviews as in the present case. Para 53 of State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 is reproduced hereunder:

'53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore Vrs. S.V. Narayanappa, 1966 SCC OnLine SC 23, R.N. Nanjundappa Vrs. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan Vrs. State of Karnataka, (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be

considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.'

8. In the 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 recognise 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."

7.1. It is apt to refer to the anxious consideration shown by the Madras High Court in N. Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016, vide Judgment dated 22.04.2022 made with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of employees, whose services have been utilized by the Government for a long time:

"18. If the Courts cannot give direction for their regularisation of service, in the constrained legal scenario what other remedies that are available to these unfortunate employees, who have been engaged in service for public purpose, without having any definite future to hold on? These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their concerned yearning for a definite future, with unresponsive indifference.

19. A welfare State grounded on constitutional values, cannot come up with apathetic and callous stand that despite continued employment of these petitioners for years together, no semblance of right is available to them. Such stand by the State is opposed to constitutional values as enshrined in Article 21 of the Constitution of India. The Courts of course have held that equal opportunity must be provided in public employment and entry through back door should be discountenanced. When Article 21, being violated by the State, action towards its servants, the consideration of the Government must primarily

be focussed on alleviating legitimate grievances of its employees. Even assuming that the recruitment of these writ petitioners had not been fully in consonance with the procedure for appointment in Government services, the fact remained that these persons have been consciously appointed by the Government for implementing public projects and the work has been extracted from them continuously for several years. It is therefore, not open to the Government after a period of time to turn around and contend that these writ petitioners have no right at all to seek any kind of guarantee for their future.

20. In the opinion of this Court, continued employment for several years, even on a projects meant to serve the State as a whole, certain rights would definitely accrue to them, atleast to the extent of making a claim for formulation of a scheme/towards their absorption. This Court is quite conscious of the fact that the Government has been benevolent and had come up with several schemes in the past and directed regularisation of services of thousands of employees over a period of time. Such benevolence ought to permeate to the lowest levels to take within its sweep the desperate cry of the petitioners as well. As in the sublime words of the father of nation, Mahatma Gandhi, 'A nation's greatness is measured by how it treats its weakest members'. Merely because these writ petitioners have been employed 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."

7.2. Learned Single Judge of this Court in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005, reported at 2016 (I) ILR-CUT 373, made the following observation:

"7. In Binan Kumar Mohanty Vrs. Water and Land Management Institute (WALMI), 2015 (I) OLR 347 referring to Kapila Hingorani Vrs. State of Bihar, (2003) 6 SCC 1 the apex Court held that the Government companies/public sector undertakings being 'States' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kopila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable.

8. In Narendra Kumar Ratha and Others Vrs. State of Odisha and Others, 2015 (I) OLR 197, this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in public offices. The word 'employment or appointment' cover not merely the initial appointment, but also other attributes like salary,

increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made in accordance with the provisions and procedure envisaged under the law and guidelines governing the field.

9. In Prabodh Verma and Others Vrs. State of U.P. and Others, (1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government.

10. Similar view has also been taken by the apex Court in Km. Neelima Mishra Vrs. Harinder Kaur Paintal and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402 and E.P. Royappa Vrs. State of Tamil Nadu and Another, (1974) 4 SCC 3. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney Vrs. Union of India, 1992 Supp. (3) SCC 217 = AIR 1993 SC 477."

7.3. The case of Prasana Kumar Mishra (supra) was carried in appeal before the Division Bench, giving arise to W.A. No.4 of 2016, which was dismissed vide Order dated 11.12.2019. Said matter, being carried further to the

Hon'ble Supreme Court of India, vide Order dated 07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the behest of Biju Patnaik University of Technology, stood dismissed.

7.4. So far as regularization of services, in a catena of decisions the Hon'ble Supreme Court of India dealing illuminatingly with the concept of regularization, in the 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) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3), (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid."

7.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows:

"12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception

carved out in paragraph 53 of the judgment rendered in Umadevi (3) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still continuing, the same cannot be treated as an 'illegal engagement', rather it may be nomenclatured as an 'irregular engagement'.

13. In State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410, wherein a distinction has been made with regard to 'irregular' and 'illegal' engagement, referring to the exception carved out in Umadevi (3) mentioned supra, in paragraph 12 of the said judgment it has been stated as follows:

'12. The third aspect of Umadevi (3) which bears notice is the distinction between an 'irregular' and 'illegal' appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies

of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken

(a) was not in exigencies of administration; or

(b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or

(c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides."

7.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC OnLine Ori 267, it has been observed as follows:

"9. With regard to the regularization of the services of the petitioners, a mention has been made in Annexure-4 that the petitioners being irregular recruits, their regularization is not permissible under the State Government Rules. But this condition made in the restructuring order in Annexure-4 so far as it relates to the petitioners cannot be applicable in view of the fact that the petitioners have been appointed against regular vacancies available in the regular scale of pay admissible to the post. But in view of their continued service for more than 10 years, their cases are covered by the ratio of the judgment of the apex Court in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR 2006 SC 1806, wherein the apex Court has held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular

appointment of duly qualified persons against sanctioned posts, who have worked for 10 years or more can be considered on merits and steps to be taken as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows:

***

10. The object behind the exception carved out in this case was to permit regularization of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. Similar question came up for consideration before the apex Court in Civil Appeal No. 2835 of 2015 (arising out of SLP (Civil) No. 20169 of 2013 disposed of on 13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015)

8 SCC 265]. In paragraphs 12 and 13, the apex Court has held as follows:

'12. Elaborating upon the principles laid down in Umadevi's case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, this Court held as under:

'7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in

duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.'

13. Applying the ratio of Umadevi's case, this Court in Nihal Singh Vrs. State of Punjab, (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:

'35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.

36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision.

The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden.

If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-- the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.'***"

7.7. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716; Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022.

7.8. In the case of Union of India Vrs. Central Administrative Tribunal, (2019) 4 SCC 290 the following is the observation:

"25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the

requisite years of service as mandated by Umadevi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 ('the Regularisation Rules') must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Umadevi [(2006) 4 SCC 1], ML Kesari [(2010) 9 SCC 247] and Narendra Kumar Tiwari [(2018) 8 SCC 238].

26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must

follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority list in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be considered in accordance with law. The Tribunal has 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."

7.9. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it has been stated as follows:

"*** The Division Bench rightly held that the learned Single Judge has not followed the principle of law as given by this Court in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working. ***"

7.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of the Judgment runs as follows:

"7. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no doubt the petitioner had approached the tribunal seeking regularization of his services. Regularization in service law connotes official formalisation of an appointment, which was made on temporary or ad hoc or stop gap or casual basis or the like, in deviation from the normal rules of applicable norms of appointment. Such formalisation makes the appointment regular. The ordinary meaning of regularisation is "to make regular" according to The Shorter Oxford English Dictionary, 3rd Edition, and according to Black's Law Dictionary, 6th Edition, the word "regular" means:

'Conformable to law. Steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. Usual, customary, normal or general. Gerald Vrs. American Cas. Co of Reading, Pa., D.C.N.C., 249 F, Supp. 355, 357. Made according to rule, duly authorised, formed after uniform type; built or arranged according to established plan, law, or principle. Antonym of "casual" or "occasional," Palle Vrs. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290.'

8. The above being the meaning of "regular", as per the common parlance given in dictionary, in B.N. Nagarajan, Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the apex Court held that the effect of such regularization would depend on the object or purpose for which the regularization is made or the stage at which it is made. Once regularized, the procedural infirmities which attended the appointment are cured. Regularization, however, does not necessarily connote permanence.

9. The word 'regular' or 'regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Relying on the Judgments of the apex Court in B.N. Nagarajan Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the Constitution Bench of the apex Court in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 has also taken the same view, which has also been followed by the apex Court in Hindustan Petroleum Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2 SCC 717 and also in Hindustan Aeronautics Ltd. Vrs. Dan Bahadur Singh, (2007) 6 SCC 207.

10. Temporary or ad hoc or stop gap or casual basis or the like appointments are made for various reasons. An emergent situation might make it necessary to make such appointments. Since the adoption of the normal method of regular recruitment might involve considerable delay regulating in failure to tackle the

emergency. Sometimes such appointments were to be made because although extra hands are required to meet the workload, there are no sanctioned posts against which any regular recruitment could be made. In fact in the case of ad hoc or casual appointees, the appointments, are in the majority of cases, not against sanctioned posts and the appointments are made because of the necessity of workload and the constraints of sanctioning such post (mainly on financial consideration) on permanent basis. Needless to say that filling up vacancies against sanctioned posts by regularisation is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 and 16 of the Constitution by not making the offer of employment to the world at large and allowing all eligible candidates equality of opportunity to be considered on merits. If that be so, considering the emergent necessity of filling up of vacancies and allowing the petitioner to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned.

***

12. In view of above constitutional philosophy, whether Courts can remain as mute spectator, is a matter to be considered to achieve the constitutional goal in proper perspective. But all these questions had come up for consideration and decided by the Constitution Bench of the apex Court in Umadevi (3) mentioned supra. The factual matrix of the case in Umadevi (3)

arose for consideration from a judgment of Karnataka High Court. In some of the cases, the Karnataka High Court rejected the claims of persons, who had been temporarily engaged as daily wagers but were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent employees and their entitlement to all the benefits of regular employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the State or local bodies. These claims were rejected by the Division Bench of the Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the 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."

7.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C) No. 19951 of 2020, vide Judgment dated 09.09.2021, a Single Bench of this Court has made the following observation:

"8. It is worthwhile to mention here that the Court comes into picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a fair ideal to its employees consistent with requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in contractual, temporary or ad hoc status for a long period. Where a contractual, temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While issuing direction for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, a contractual, ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the

authorities ought to adopt a positive approach coupled with empathy for the person."

7.12. Aforesaid Judgment rendered by the Single Judge of this Court in Patitapaban Dutta Dash (supra) got the seal of approval of this Court being carried in appeal bearing W.A. No. 777 of 2021 before the Division Bench, which came to be disposed of vide Judgment dated 12.04.2023 [see, (2023) (I) ILR-CUT 906]. While directing the State of Odisha to implement the direction of the Single Judge "in letter and spirit", this Court in the ultimate held as follows:

"44. Going by the above legal position, in the present cases, at the highest, the respondents could be considered to be 'irregularly' appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularization. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR 2018 SC 233 and Rajnish Kumar Mishra Vrs. State of U.P., (2019) 17 SCC 648."

7.13. Noticing the Judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others Vrs. Umadevi (3), (2006) 4 SCC 1, in Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407 the observation of this Court runs as follows:

"12. Similarly, in the case of Amarendra Kumar Mahapatra and Others Vrs. State of Odisha and

Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the Supreme Court was of the opinion that the appellants were entitled to regularization in service having regard to the fact that they have rendered long years of service on ad hoc basis.

13. In the case at hand, it can be ascertained that the petitioner was appointed against a substantive vacant post and he had been discharging his duties in the said post since 1993. The appointment was made on an ad hoc basis and was extended from time to time. Since the petitioner was appointed against substantive vacancy and the post was sanctioned by higher authorities, the petitioner should have been extended the benefit of regulatisation like other similarly situated persons."

7.14. This Court wishes to take notice of recent view of Hon'ble Supreme Court of India expressed in the case of Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826, wherein it has been observed as follows:

"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 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 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.

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 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 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 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."

7.15. In the case of Shripal Vrs. Nagar Nigam, 2025 SCC OnLine SC 221 referring to observations rendered in Jaggo (supra), the Hon'ble Supreme Court of India has been pleased to clarify that:

"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.

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.

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 longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable norms."

7.16. This Court takes note of decision of a Division Bench

vide Judgment dated 02.11.2023 passed in the case of Union of India and others Vrs. Subhankari Das and others in W.P.(C) No.34332 of 2023, wherein having regard to catena of decisions on the issue of regularisation of service rendered by the Hon'ble Supreme Court of India and also the High Court of Delhi, a direction was issued to the authority concerned to regularise the service of the opposite party therein.

8. The fact that the petitioner has been engaged to work as sweeper pursuant to consideration in due process in the Meeting of the Governing Body of Rogi Kalyana Samiti and acknowledged his service in the Primary Health Centre (N), Malipada since 2010. The fact that the petitioner has filed representation before the authority

concerned and pendency thereof is not disputed. Needless to observe that the service of a sweeper is required perennially.

9. In view of aforesaid facts, circumstances and bearing in mind, the view expressed by the Hon'ble Supreme Court of India in the afore-reported judgments this Court feels it apposite to direct the opposite party No.5 (before whom the representation is furnished) to consider the representation dated 09.11.2017 taking into account the decisions referred to (supra).

9.1. As this Court does not wish to express any opinion on the merit of the matter, it is hoped that taking pragmatic view in the matter the opposite parties (competent authorities) shall pass reasoned order within a period of eight weeks from the date of communication of copy of this order to the opposite parties to be communicated by the petitioner.

9.2. In fine, the writ petition stands disposed of.

(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 2nd April, 2025//Suchitra

Location: HIGH COURT OF ORISSA, CUTTACK