"Under the above circumstances, it is, therefore, humbly
prayed that the Hon‟ble Court be graciously pleased to
issue a writ in the nature of writ of mandamus or any
other appropriate writ, direction or order by quashing the
order passed by the opposite party No.3 dated
21.04.2022 vide Annexure-12 to the writ application.
And the Hon‟ble Court be pleased to direct the opposite
parties more particularly the opposite party No.3 to
regularize the service of the petitioner as Assistant
Revenue Inspector in the District of Jagatsinghpur with
effect from the date of his initial appointment and to
extend the benefit of the fixation of pay in its proper
perspective and as well as the fixation of pay as per
ACP/RACP Scheme as has been provided under the pay
revision rules made by the State Government from time to
time.
And the Hon‟ble Court be further pleased to direct the
opposite parties to release the dues of the petitioner
within a time frame.
And for this act of kindness, as in duty bound, the
petitioner shall ever pray."
District Magistrate, Jagatsinghpur, opposite party No.3,
in the scale of pay Rs.800-15-1010-EB-25-1150/- with
usual Dearness Allowance and other allowances as
admissible by Government from time to time vide Order
in Memo No.402/Estt., dated 07.02.1997. Having joined
said post, the Tahasildar, Balikuda posted the petitioner
at Naugaon R.I. Circle to assist the Revenue Inspector,
Naugaon for collection work for a period of 44 days.
2.1. Vide Order in Memo No.43 (2) dated 20.03.1998, the
petitioner was appointed and allowed to continue on
"temporary" basis as a Collection Moharir until further
orders or till the date of filling up of the post by process
of regular recruitment of Collection Moharir on
promotion whichever is earlier. The petitioner was
appointed in the scale of pay of Rs.800-15-1010-EB-25-
1150/- with usual Dearness Allowance and other
allowances as admissible from time to time.
2.2. While continuing as such, the post of Collection Moharir
was re-designated as Assistant Revenue Inspector (for
short referred to as "ARI"), and accordingly, the
petitioner was allowed to continue as ARI. The service
book of the petitioner was also opened by the opposite
party No.3 in the year 2000 reflecting "17.03.1998" as
the date of entry in the Government service, although
the petitioner was appointed and continuing in the post
of Collection Moharir (later re-designated as ARI) on
07.02.1997.
2.3. It is submitted that while the petitioner was continuing
as such, he was allowed to operate independently in-
charge of Revenue Inspector Office when the Revenue
Inspector used to remain absent and he was allowed to
continue as Revenue Inspector when the post fell vacant.
Instances are vide Order in Memo No.1928(6), dated
31.07.2003 on transfer of R.I. the petitioner was directed
to remain in charge of said higher post; and vide Order
in Memo No.3923(3), dated 31.01.2007 on the R.I. being
relieved from duties, the petitioner was directed to be in
charge and was authorised to issue rent receipts, and
deal with financial matters relating to Sikhar R.I. under
Tahasil Office, Jagatsinghpur. Such functioning of the
petitioner was all through appreciated by the higher
authorities.
2.4. He was also transferred to different RI Stations as
regularly appointed employee under the jurisdiction of
opposite party No.3 wherein the petitioner also
discharged his duties to the satisfaction of all concerned
because of his sincerity and ability in discharging the
duties as Revenue Inspector.
2.5. While continuing against vacant sanctioned post having
the requisite qualification and being extended with the
regular scales of pay prescribed for the Government
post, the petitioner approached the learned Odisha
Administrative Tribunal, Cuttack Bench, Cuttack by way
of filing an Original Application, registered as O.A. No.
4550(C) of 2011, which came to be disposed of vide
order dated 03.01.2012 with the following observation:
2.6. The opposite party No.3, after receipt of the order of the
learned Tribunal, was pleased to pass an order on
11.04.2012 by rejecting the claim of the petitioner by
assigning following reason:
2.7. Being dissatisfied, by such order of the Collector-cum-
District Magistrate, the petitioner challenged said order
before the learned Odisha Administrative Tribunal,
Cuttack Bench, Cuttack under Section 19 of the
Administrative Tribunals Act, 1985, by filing Original
Application, being OA No. 4295 (C) of 2012. The learned
Tribunal vide Order dated 03.01.2013, while issuing
notice to the opposite parties in the Original Application,
passed an order to the effect that the pendency of the
Original Application shall not be a bar to allow the
petitioner for appearing in the test pursuant to
advertisement issued by the opposite party No.3 for
appointment to the post of ARI, but his results would
not be published without specific leave of the Tribunal. It
was also further directed to keep such result in a sealed
cover till adjudication. However, after abolition of the
Odisha Administrative Tribunal said case has been
transferred to this Court and renumbered as WPC (OAC)
No.4295 of 2012, which stood disposed of by Order
dated 05.12.2022 on the submission of the learned
counsel that he had no instructions. Be that be, the
petitioner has been continuing and discharging the
function of ARI till date.
2.8. While the matter stood thus, the State Government in
General Administration and Public Grievance
Department vide Letter No.7210(e)-GAD-SC-GCS-0169-
2020/Gen, dated 03.03.2021 under the subject
"regularization of contractual employees" communicated
the policy decision of the Government to all the
Departments of the Government stating therein the
procedure to be adopted for regularization of the
contractual appointees and accordingly, a check list was
prepared for examination of the different departments of
the Government for regularization of contractual
employees. The said guideline is stated to have been
prepared in tune with the principle laid down by the
Hon'ble Supreme Court in case of Secretary, State of
Karanataka Vrs. Uma Devi (3), (2006) 4 SCC 1.
2.9. Accordingly, the petitioner in the meantime having
completed more than 24-25 years of service being
appointed on temporary basis in the sanctioned post of
Collection Moharir/ARI since 1997, approached the
Collector-cum-District Magistrate, Jagatsinghpur with
prayer to regularise his service in the light of the
guidelines brought in force by Letter of the Government
of Odisha in General Administration and Public
Grievance Department dated 03.03.2021.
2.10. Since the opposite party No.3 did not take any step to
consider the case of the petitioner for regularization, a
writ application, bearing W.P.(C) No.37519 of 2021, was
filed, which was disposed of vide Order dated
11.12.2021 of this Court with a direction to the opposite
party No.3 to consider the representation dated
08.04.2021.
2.11. Said order of this Court remained unchallenged/
uncontested by the opposite parties; nevertheless, the
same was implemented by considering the
representation of the petitioner dated 08.04.2021 by
order dated 21.04.2022. The Collector-cum-District
Magistrate rejected the prayer of the petitioner for
regularization in service in the post of the Assistant
Revenue Inspector. Such rejection order dated
21.04.2022 of the Collector-cum-District Magistrate is
assailed in the present writ petition.
Laying emphasis on the contents asserted in paragraphs
6 and 8 of the counter affidavit, he strenuously argued
that "the petitioner joined the post on 07.02.1997 and
had not completed 10 years of service as on the date of
judgment, i.e., dated 10.04.2006".
4.1. He further submitted that since the petitioner does not
satisfy the eligibility criteria, the concerned authority
while disposing of his representation, has followed the
law laid down by the Hon'ble Supreme Court and the
circular issued by the General Administration and Public
Grievance Department.
4.2. It is further submitted by learned Additional Standing
Counsel that the Collector, Jagatsinghpur having
disposed of the representation of the petitioner strictly in
terms of direction contained in Order dated 11.12.2021
in W.P.(C) No.37519 of 2021 of this Court, the Order
dated 21.04.2022 (Annexure-12) of the Collector-cum-
District Magistrate could not be faulted with. Therefore,
he fervently prayed to dismiss the writ petition.
5. Before delving into merit of the matter it is apposite to
take note of legal perspective discussed and views
expressed by Courts with regard to regularisation
service.
5.1. 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, expounded as follows:
5.2. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it
has been discussed as follows:
2 State of Karnataka and others Vrs. M.L. Kesari and others, 2010 (9) SCC 247.
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.‟ ***"
5.3. 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
13.03.2015 [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
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.‟***"
5.4. 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.
5.5. 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
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."
5.6. 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.
***"
5.7. 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."
5.8. 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
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."
5.9. 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
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."
5.10. 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
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.
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 long time employees are not indefinitely
retained on daily wages contrary to statutory
and equitable norms."
5.11. In the case of Orissa Water Supply and Sewerage Board
Vrs. Bijay Kumar Samal, W.A. No.857 of 2024 & Batch,
vide Judgment dated 30.07.2025 taking note of the
judgments of the Hon'ble Supreme Court referred to
above this Court in Division Bench made the following
pertinent observation:
"6.3. Illegality is one thing and irregularity is another,
even if arguably they are not polls asunder. At
times, the difference between these two, sages of
law like Fredric Pollock say, more often than not, is
in degrees & not in kind. In a constitutionally
ordained Welfare State its instrumentality like the
Board cannot be permitted to contend that although
it made the appointments in question, the same are
marred by illegality, especially when they are not,
for the reasons already discussed above. Here are
employees who have been shading their sweat, if
not blood, to the soil in the discharge of their
functions for more than twenty five years. Firstly, a
perpetrator of illegality, if at all these
appointments are of the kind, cannot be
permitted to take the advantage of its own
illegal act. Secondly, whatever arguable
illegality at the entry level of employment
would diminish year by year and become nil at
least after a quarter century, as a concession
to the shortness of human life. One cannot dig
the grave profitably, the dead having gone with the
winds long ago once for all. Therefore, the entry of
these respondents is at the most can be termed
as irregular and therefore Umadevi cannot be
chanted like mantra to defeat their legitimate
expectation, if not right."
5.12. In the case of public sector undertaking like the Odisha
Mining Corporation, in the matter of Rajendra Kumar
Nayak Vrs. Odisha Minining Corporation, 2017 (II) ILR-
CUT 912, a Single Bench of this Court observed as
follows:
"6. On the basis of the facts pleaded above, there is no
dispute that the petitioner was appointed as
Worksirkar Grade-II on 13.04.1987 in OMCL.
Subsequently, on being permitted, for having
requisite experience and qualification to man the
post, he has been discharging the duties of Junior
Assistant/Legal Assistant, as is borne out from
various correspondences made by the authorities
under whom he was working. The materials
available on record also reveal that the persons, who
had been appointed after the petitioner, have
already been regularized and paid regular scale of
pay admissible to the post held by them, and the
petitioner only has been singled out. As such, even
though 30 years have passed in the meantime, his
service has not been regularized in spite of the
recommendations made by the authorities. Neither
the representation of the petitioner has been
considered in proper perspective, nor the benefit
admissible to the post held by him has been
extended, nor the nature of duties and
responsibilities discharged by him as a Junior
Assistant, having requisite qualification, has been
recognized with. The plea taken is that he has not
been recruited by following due procedure of
recruitment as envisaged under the rules, but there
is no denial that he is not discharging the duties as
Junior Assistant even though he was appointed as
Worksirkar Grade-II with effect from 13.04.1987.
Furthermore, since the petitioner has been
discharging the duties of Junior Assistant
continuously without any break, that itself indicates
that there is availability of post. If the post is
available, against which the petitioner has been
permitted to discharging the duties for a quite long
period of near about 30 years, the authority cannot
deny the benefit of his regularization on the plea
that he has not come through a recruitment process
conducted as per the Rules. With eyes wide open
and to the knowledge of the authorities concerned,
the petitioner, as a Junior Assistant, has been
discharging the duties and responsibilities assigned
to him for a quite long period. As such, when the
authorities, under which he is working, have
recommended his case for regularization and, more
so, the persons appointed after him have already
been regularized, there is no justifiable reason
available to the authority not to regularize the
service of the petitioner and extend the benefit from
the date of his initial appointment against the post of
Junior Assistant. Therefore, such action of the
authority is not only unreasonable and arbitrary but
also discriminatory in nature and violates Articles 14
and 16 of Constitution of India.
7. Furthermore, non-consideration of grievance of the
petitioner for such a long period, by allowing him to
discharge the duty of Junior Assistant (even though
he was appointed as Worksirkar Grade-II), is a clear
case of exploitation of labour by the employer. Every
employee, who is engaged by an employer, expects
to continue on regular basis with all service benefits
of at least increments, promotion and seniority in
accordance with law. The legitimate expectation of
an employee to continue in a particular post with its
future prospects of promotion and other benefits
have been denied to the petitioner in the present
case. As such, why he is being deprived of getting
such benefit irrespective of the recommendations
made by the authorities under whom he has been
discharging the duty, no plausible reasons have
been assigned in the counter affidavit. Merely
because the petitioner has not been appointed as per
the rules, he cannot be deprived of subsequent
regularization, particularly when such benefits have
already been extended by the authority concerned to
the persons appointed after the petitioner. To a
query made by this Court, learned counsel for the
opposite parties informed that because of pendency
of this case the petitioner has not been regularized.
8. It is worthwhile to mention here that the Court
comes into the 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 deal 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 temporary
or ad hoc status for a long period. Where a
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, an 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. But here is a
case where even though the petitioner is continuing
in the post for last more than 30 years, his service
has not yet been regularized, though persons
appointed after him have already been regularized."
5.13. 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
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."
5.14. 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
years, keeping in view the ratio decided in Kapila
Hingorani (supra), this Court issues direction to the
opposite parties to mitigate the hardship of the
employees. Financial stringency is no ground for not
issuing requisite directions when there is violation of
fundamental rights of the petitioner. Allowing a
person to continue for a quite long period of 20 years
of service and exploiting him on the pretext of
financial crunch in violation of Article 21 of the
Constitution of India is sheer arbitrariness of the
authority which is highly condemnable.
8. In Narendra Kumar Ratha 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."
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.
5.15. In the context of continued engagement with notional
break of one day, this Court in Ramesh Chandra
Mohapatra Vrs. State of Odisha, 2022 SCC OnLine Ori
2587 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
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.
***
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
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."
Discussion and conclusion:
6. With the above conspectus, when the impugned order
dated 21.04.2022 is juxtaposed, it is seemly that the
Collector-cum-District Magistrate, Jagatsinghpur cannot
withstand judicial scrutiny.
6.1. 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/
temporary employment for consideration to be brought
over to regular establishment. Continuous service of the
petitioner against vacant sanctioned posts as
temporary/ad hoc appointee constitutes a substantive
departure from the temporary and ad hoc nature of his
initial appointment, more particularly when the
employee is granted pay according to the scale of pay
attached to the post and accorded the benefit of
dearness allowance and other allowances. Hence, his
service conditions warrant reclassification from
temporary/ad hoc to regular.
6.2. The undisputed and uncontroverted factual matrix as
emanated from the pleadings of the case is that against
vacant sanctioned post the petitioner joined in the post
of Collection Moharir, which later on is re-designated as
ARI, on 07.02.1997 (though Service Book has been
maintained reflecting the date of entry into Government
service as "17.03.1998") and he had been paid in accord
with pay scale and was availing benefit of usual
Dearness Allowance with all allowances. He has been
entrusted with the work of Revenue Inspector. He has
been continuing as such since 1997 till date under the
Tahasil.
6.3. The clinching factor for consideration which was ignored
by the opposite parties is that besides the petitioner has
been given the higher responsibility of Revenue Inspector
and was transferred treating him as regularly appointed
ARI, his pay was also fixed appropriately as per the
Odisha Revised Scales of Pay Rules, 1998 in the scale of
pay prescribed for the post of Collection Moharir (ARI)
and also subsequent thereto as per the Odisha Revised
Scales of Pay Rules, 2008, i.e. in the scale of Rs.2650-
4000/- with Grade Pay Rs.1650/- as on 01.01.2006 at
Rs.4440/- and the same was fixed at Rs.5200/- with
Grade Pay 1900/- in pursuance of the Revenue and
Disaster Management Resolution No.10533 dated
02.03.2007 and was made with effect from 02.03.2009
as is evident from the entries made in the service book of
the petitioner. This apart, on introduction of the Odisha
Revised Scales of Pay Rules, 2017, the pay of the
petitioner was also fixed at Rs.19900/- in Level-4 Cell-1
as on 01.01.2016. The petitioner was also extended the
benefit of festival advance and GIS deductions which
were also made from the salary of the petitioner. From
this, it is clearly evinced that the petitioner has been
given the benefit of the scale of pay as well as the
benefits which a regular Government servant enjoys but
the petitioner was not treated as regular Government
servant and has been treated to be continuing as a
temporary employee.
6.4. Only objection as is apparent from impugned order
dated 21st April, 2022 of the Collector-cum-District
Magistrate, Jagatsinghpur is that he had not completed
continuous 10 years of service from 07.02.1997 (initial
appointment) till 10.04.2006, i.e., the date of
pronouncement of judgment in Umadevi (3) (supra).
Such a stance of the opposite party No.3 is fallacious in
view of Jaggo (supra) and Shripal (supra) and other
decisions rendered prior thereto including the decision of
Division Bench of this Court in Orissa Water Supply and
Sewerage Board Vrs. Bijay Kumar Samal, W.A. No.857 of
2024 & Batch, vide Judgment dated 30.07.2025. It
transpires that the basic fact that has been ignored and
brushed aside by the Collector-opposite party No.3 is the
petitioner has put in service of more than around 24
years since 07.02.1997 till the date of consideration of
representation dated 08.04.2021 in pursuance of order
dated 11.12.2021 of this Court in W.P.(C) No.37519 of
2021.
6.5. Whereas it is neither gainsaid nor has it been argued
before this Court that the post against which the
petitioner has been working since 1997 is sanctioned
post and the term of his service had been extended from
time to time. So, the argument of learned Additional
Standing Counsel that the entry of the petitioner into
service was illegal is liable to be repelled, being not
borne on facts. It is obvious that the break of one day on
each 44 days pales into insignificance in view of very
many decisions rendered by different Courts including
this Court. Continuous and perennial nature of job of
ARI since 1997 till date would lead to suggest that there
is need for such ARI post and it could not be dispensed
with.
6.6. This Court, thus, perceives that since more than 10
years of service without the intervention of orders of the
court or of tribunal has been rendered by the petitioner
being duly qualified person against vacant sanctioned
post, in view of paragraph 53 State of Karnataka Vrs.
Umadevi (3), (2006) 4 SCC 1 the petitioner is entitled to
be considered for regularisation in service. The
appointment of the petitioner against sanctioned post
would be unambiguous to construe that it is not
"illegal". This is fortified by decisions of the Hon'ble
Supreme Court of India referred to above including
Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265 and
Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826 =
2024 LiveLaw (SC) 1032. The anxious consideration for
regularisation in service has been reflected in Shripal
Vrs. Nagar Nigam, 2025 SCC OnLine SC 221 = 2025
LiveLaw (SC) 153 referring to observations rendered in
Jaggo (supra), to the effect that "Indeed, bureaucratic
limitations cannot trump the legitimate rights of workmen
who have served continuously in de facto regular roles for
an extended period". A welfare State grounded on
constitutional values cannot come up with apathetic and
callous stand that despite continued employment of the
petitioner for years together, no semblance of right is
available to him. This is nothing but a form of
exploitation of the employee by not giving him the
benefits of regularisation and by placing the sword of
Damocles over his head. This is precisely what Umadevi
(supra) and Kesari (supra) sought to avoid, vide Narendra
Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238.
6.7. As it seems the learned Additional Standing Counsel
sought to argue that since the appointment of the
petitioner was not by way of due selection process, in
view of State of Bihar Vrs. Kirti Narayan Prasad, (2018)
14 SCR 403 the regularisation in service was rightfully
denied by the opposite party No.3. In the said reported
decision it has been observed as follows:
"13. In Umadevi (supra) the Constitution Bench has held
that unless appointment is made in terms of the
relevant rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at
the end of the contract, if it was an engagement or
appointment on daily wages or casual basis, the
same would come to an end when it is discontinued.
A temporary employee could not claim to be
made permanent on the expiry of his term of
appointment. It was also clarified that merely
because a temporary employee or a casual
wage worker is continued for a time beyond the
term of his appointment, he would not be
entitled to be absorbed in regular service or
made permanent, merely on the strength of
such continuance, if the original appointment
was not made by following a due process of
selection as envisaged by the relevant rules. In
paragraph 43 of Umadevi (supra), it was held as
under:
„43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic
feature of our Constitution and since the rule of
law is the core of our Constitution, a court
would certainly be disabled from passing an
order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply
with the requirements of Article 14 read with
Article 16 of the Constitution. Therefore,
consistent with the scheme for public
employment, this Court while laying down the
law, has necessarily to hold that unless the
appointment is in terms of the relevant rules
and after a proper competition among qualified
persons, the same would not confer any right
on the appointee. If it is a contractual
appointment, the appointment comes to an end
at the end of the contract, if it were an
engagement or appointment on daily wages or
casual basis, the same would come to an end
when it is discontinued. Similarly, a temporary
employee could not claim to be made
permanent on the expiry of his term of
appointment. It has also to be clarified that
merely because a temporary employee or a
casual wage worker is continued for a time
beyond the term of his appointment, he would
not be entitled to be absorbed in regular service
or made permanent, merely on the strength of
such continuance, if the original appointment
was not made by following a due process of
selection as envisaged by the relevant rules. It
is not open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment has
come to an end or of ad hoc employees who by
the very nature of their appointment, do not
acquire any right. The High Courts acting
under Article 226 of the Constitution, should
not ordinarily issue directions for absorption,
regularisation, or permanent continuance
unless the recruitment itself was made
regularly and in terms of the constitutional
scheme. Merely because an employee had
continued under cover of an order of the court,
which we have described as "litigious
employment" in the earlier part of the
judgment, he would not be entitled to any right
to be absorbed or made permanent in the
service. In fact, in such cases, the High Court
may not be justified in issuing interim
directions, since, after all, if ultimately the
employee approaching it is found entitled to
relief, it may be possible for it to mould the
relief in such a manner that ultimately no
prejudice will be caused to him, whereas an
interim direction to continue his employment
would hold up the regular procedure for
selection or impose on the State the burden of
paying an employee who is really not required.
The courts must be careful in ensuring that
they do not interfere unduly with the economic
arrangement of its affairs by the State or its
instrumentalities or lend themselves the
instruments to facilitate the bypassing of the
constitutional and statutory mandates.‟
14. However, in paragraph 53 an exception is made to
the general principles against regularisation as a
one-time measure which is as under: ***
15. In some of the LPAs the Division Bench appears to
have followed paragraph 11 in M.L. Kesari (supra)
for directing regularisation of service without
considering the observations contained in paragraph
7 of the judgment. In paragraph 11, it was observed
that
„the true effect of the direction is that all persons
who have worked for more than ten years as on
10.4.2006 [the date of decision in Umadevi (3)]
without the protection of any interim order of any
court or tribunal, in vacant posts, possessing the
requisite qualification, are entitled to be considered
for regularisation within six months of the decision
in Umadevi (3) as a one time measure***‟.
However, in paragraph 7 after considering Umadevi
(supra) this Court has categorically held that for
regularisation, the appointment of employee should
not be illegal even if irregular.
„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.‟
***"
6.8. The facts are couched in the instant case differently as
the petitioner has the requisite qualification and he was
appointed temporarily against vacant sanctioned post.
Therefore, if not illegal, his appointment if at all could be
said to be irregular, which can be without any
impediment regularised in view of principles devised by
way of decisions of the Hon'ble Supreme Court of India
as also this Court. At this juncture the principle
reiterated by the Hon'ble Supreme Court in the case of
Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1
may be gainfully quoted:
"12. Before examining the first limb of the question,
formulated above, it would be instructive to note, as
a preface, the well settled principle of law in the
matter of applying precedents that the Court should
not place reliance on decisions without discussing as
to how the fact situation of the case before it fits in
with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither
to be read as Euclid‟s theorems nor as provisions of
Statute and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Disposal of cases
by blindly placing reliance on a decision is not
proper because one additional or different fact may
make a world of difference between conclusions in
two cases."
6.9. The vociferous argument of Sri Prem Kumar Mohanty,
learned Additional Standing Counsel referring to
paragraph 6 of the counter affidavit that it is not known
to the Collector-cum-District Magistrate as to whether
the petitioner has appeared in the written examination is
liable to be rejected in view of Suvendu Mohanty Vrs.
State of Odisha, 2015 SCC OnLine Ori 267 laying down
having regard to Amarkant Rai Vrs. State of Bihar, (2015)
8 SCC 265 that where the persons 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".
Such irregular appointment of the petitioner, in the
instant case, could be regularised inasmuch as there is
no material placed before this Court to say to the
contrary. It is not the case of the opposite parties that
the petitioner does not possess requisite qualification,
moreover it is admitted case of the opposite parties that
the petitioner has been appointed against the vacant
sanctioned post and paid scale of pay with usual
Dearness Allowance and other allowances, as is given to
other counterparts who are in regular service. Such a
stand of ignorance cannot be countenanced inasmuch
as it would run counter to the order dated 03.01.2013 of
the learned Odisha Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No.4295 (C) of 2012 which
clearly spelt out that the test in which the petitioner
might appear, the result of the same would be kept in
sealed cover. Sri Jayanta Kumar Rath, learned Senior
Advocate expanded his argument by saying that no reply
to controvert has been brought on record to the rejoinder
affidavit wherein it has been categorically explained that
since the case of the petitioner was not considered in its
proper perspective, he was directed to appear in the
written test pursuant to the advertisement dated
31.03.2012. The petitioner, though participated, the
entire recruitment process was ultimately cancelled by
the opposite party No.3 without assigning any reason.
Such cancellation was not within the control of the
petitioner. It has been clarified that the recruitment
conducted by the Odisha Subordinate Staff Selection
Commission was for ad hoc appointment, whereas the
petitioner was continuing on temporary/ad hoc basis for
number of years. Nonetheless, the opposite party No.3
did not recommend the name of the petitioner to the
Odisha Subordinate Staff Selection Commission as a
departmental candidate. The petitioner could not have
applied for the post, as he was age barred as per the
advertisement. Therefore, this Court perceives the
contrary stance taken by the learned Additional
Standing Counsel is incoherent and incongruous to the
material fact borne on record.
6.10. Another pertinent aspect which may deserve to be
noticed is the policy of the Government for consideration
of regularisation on successful completion of six years in
service is determinative factor vide General
Administration Resolution No. 261085/Gen., dated
17.09.2013.
6.11. The statements made in Paragraph-4 of the counter
affidavit stating that the present writ application is the
3rd round of litigation is indicative of fact that the
authorities have shown lackadaisical approach and
apathetic attitude without taking into consideration
germane factors coupled with undisputed facts vis-à-vis
well-established legal perspective as discussed
hereinabove. The petitioner, an ARI, has been running
from pillar to post seeking his legitimate entitlement and
protection in his service in connection with his
livelihood.
6.12. Under the above perspective, for the discussions made
on factual aspects with reasons ascribed hitherto, when
the views of the Court(s) are taken together, this Court
is, therefore, of the considered opinion that the Order
dated 21.04.2022 passed by the Collector in Misc. Case
No.11 of 2022 pursuant to direction of this Court in
Order dated 11.12.2021 passed in W.P.(C) No.37519 of
2021 is liable to be set aside and this Court does so.
7. Accordingly, Order dated 21.04.2022 of the Collector
(Annexure-12) being set aside, this Court directs as
follows:
i. The opposite party No.3-Collector-cum-District
Magistrate shall decide the claim of the petitioner
afresh keeping in view the law as settled and
discussed hereinabove and observations made.
ii. Since the petitioner has been working since 1997
without any blemish from any quarter (as the
pleadings do not contain to the contrary) and, by
now he has completed around 24 years in the
service as ARI, it is expected that the competent
authority shall take pragmatic view and conclude
entire process within eight weeks from date.
8. In the result, the writ petition stands disposed of along
with all pending interlocutory applications, if any;
however, there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not
Verified
Digitally Signed
Signed by:
BICHITRANANDA SAHOO
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 18-Aug-2025 16:58:05
High Court of Orissa, Cuttack
The 18th August, 2025/Bichi/MRS
