Orissa High Court
Orissa Water Supply And Sewerage vs Akhsaya Kumar Biswal And Others on 20 August, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.926 of 2025
Orissa Water Supply and Sewerage .... Appellant
Board
Mr. Sailaza Nandan Das, Advocate
-versus-
Akhsaya Kumar Biswal and others .... Respondents
Mr. Abhisek Mohanty, Advocate for Respondent No.1
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 20.08.2025
01. W.A. No.926 of 2025 & I.A. No.2684 of 2025
1. The Interlocutory Application has been filed for
condonation of delay of 16 days in filing the intra-Court appeal,
being W.A. No.926 of 2025, by the functionaries of the Orissa
Water Supply and Sewerage Board.
1.1. Aggrieved by the order dated 02.04.2025 read with
modification order dated 10.04.2025, passed in W.P.(C)
No.17660 of 2024 by a learned Single Bench of this Court
exercising power under Articles 226 and 227 of the Constitution
of India directing the opposite parties in the writ petition
(appellant herein) to consider the case of respondent no.1
(petitioner in the writ petition) by creating and sanctioning of
posts to absorb/regularize his service, this intra-Court appeal
under Article 4 of the Orissa High Court Rules, 1948 read with
Clause 10 of the Letter Patent constituting the High Court of
Judicature at Patna and Rule 6 of Chapter-III of the Rules of the
High Court of Orissa, 1948 has been preferred.
2. The respondent no.1 filed the writ appeal by stating the
fact that being appointed as DLR without following due process
of recruitment and in absence of any advertisement, the claim for
regularization is not permissible inasmuch as irregular
appointment/engagement of the appellant cannot be regularised.
It is further stated that such appointment being not sanctioned, is
illegal.
3. Learned counsel appearing for the appellant submitted
that the learned Single Judge erred in law by directing as follows:
"7. It is further directed that while considering the case
of the Petitioner for regularization as his service as
directed hereinabove, the Opposite Party cannot reject
the claim only on the ground that there are no sanctioned
posts. Further it is directed that in such eventuality, the
Opposite Parties shall take a decision with regard to
creation and sanction of posts to absorb/regularize of the
Petitioner. In the event such decision is taken pursuant to
the aforesaid direction and the same requires the
concurrence of State, the State-Opposite Parties shall
consider grant of concurrence keeping in mind that the
petitioner has been working for more than two decades
and as such the nature of work they are performing
perennial in nature.
8. With the aforesaid observation/direction, the writ
application stands disposed of."
3.1. Though the writ appeal has been filed flagging an issue
whether Court can direct creation and sanction of post to absorb/
regularize respondent no.1, who was appointed without following
any recruitment process, learned counsel for the appellant fairly
conceded that similar issue was subject-matter before this Court
in batch of matters before the co-ordinate Bench of this Court
being W.A. No.857 of 2024 (Orissa Water Supply and Sewerage
Board Vs. Bijay Kumar Samal and others) &c.. Vide judgment
dated 30th July, 2025 this Court affirmed the order passed by the
learned Single Bench in writ petition with the following
observations:-
"6.6. Very importantly, it is not the State Government, which is
in appeal before us against the direction purportedly for the
creation & sanctioning of posts. Government happens to be one
of the parties to the writ petition and it is not making out any
grievance against the said direction, which accords with the
multiple recommendations made by the Board several times
hitherto fore. In fact, Board cannot be considered as an
aggrieved party in order to call upon us to undertake a deeper
examination of the contention as to the prerogative of the State
Government to create & sanction posts for accommodating the
poor employees, who have been relentlessly working, we repeat,
for more than a quarter century with no complaints whatsoever.
Courts have to individualize justice in the pleaded facts &
circumstances. They cannot turn a worthy cause away by
mindlessly invoking broad propositions canvassed at the Bar.
We hasten to add that ordinarily Writ Courts do not interfere in
matters of prerogatives of the Government; however, when it
comes to lesser bodies, like the statutory Board in question,
exceptions are recognized to the norm; the case in appeals at
hand is one such exception.
6.7. We notice that the Appellant-Board in the subject
Resolutions dated 23.12.2013, 03.01.2014, etc. has specifically
stated the circumstances warranting creation & sanctioning of
posts explicit recommending to regularize the services of all
employees of the kind. It is admitted by the learned panel
counsel before us that quite a few employees having secured
orders of regularization in WP(C) Nos.3921, 3922, 3924 of
2006, WP(C) Nos.10046 of 2008 & WP(C) No. 3395 of 2020,
the Board had laid challenge in Writ Appeals that came to be
negatived and further that even the SLPs filed before the Apex
Court met the same fate. If one set of employees are granted
regularization, another set similarly circumstanced cannot be
unfavorably discriminated vide Apex Court decision in Raman
Kumar & Ors. v. UOI, 2023 LiveLaw (SC) 520. This decision
specifically refers to Umadevi supra. Again we need not say
that an Article 12 entity cannot practise "pick & choose", when
it comes to employing the work force. What applies to goose,
applies to gander, subject to all just exceptions into which
argued case of the appellants does not fit.
6.8. Learned advocates appearing for the employees are
justified in reminding us that law like a living river flows and
streams do emerge. Post Umadevi, that has happened in the
matter of regularization/absorption of services. In its recent
decision in Civil Appeal Nos. 8157, 8158-8179 of 2024 between
Shripal v. Nagar Nigam, Gajiabad decided on 31.01.2025 vide
MANU/SC/0139/2025, the Apex Court has observed at Para-17
as under:
"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."
We appreciate the fairness of learned panel counsel appearing
for the Appellant-Board rightly in not taking up contentions that
these employees did not have requisite qualification, that their
performance was unsatisfactory or that their services are no
longer required for the functioning of the Board. He was also
fair in laying bare the vacancy position of 32 ministerial posts
with various designations, although some of them not availing
to Respondent-employees, by producing the chart prepared by
Administrative Officer of the Board on 20.03.2024. Chart also
specifically mentions name of one employee Mr. A.K. Panda,
who secured order of regularization in WP(C) No. 10046 of
2008. Learned panel counsel does not dispute assertion of
learned advocates appearing for the Respondents that this
matter ultimately went up to the Apex Court and was laid to
rest, the subject SLP having been dismissed.
6.9. In Jaggo (supra) the Hon‟ble Supreme Court having
surveyed the law relating to regularization from Umadevi to
Vinod Kumar v. UOI, (2024) 1SCR 1230, has observed at Para-
20 as under:
"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...."
This decision has discussed most of the rulings cited both by the
Appellants counsel and learned advocates appearing for the
employees. Therefore, we have not re-ventured the survey, so
that this judgment does not become a thesis. More is not
necessary to deliberate.
In the above circumstances, these appeals being devoid of
merits are liable to be and accordingly dismissed, costs having
been reluctantly made easy.
The Appellant-Board & Official Respondents are directed to
implement the impugned orders of the learned Single Judges
and report compliance to the Registrar General of this Court
within an outer limit of three months. Default or delay shall be
viewed very seriously in the next legal battle, if waged by the
Respondent-employees."
3.2. He submitted that by condoning the delay of 16 days in
preferring this writ appeal, this Court may pass necessary orders
in terms of judgment dated 30th July, 2025 passed in W.A.
Nos.857 of 2024 and batch.
4. Mr. Abhisek Mohanty, learned counsel entered
appearance on behalf of respondent no.1 raised no objection on
condonation of delay and conceded for condonation of delay.
5. On perusal of record, it seems that there has been delay of
16 days in filing this writ appeal. Since the issue raised in the
writ appeal has already been addressed in the judgment dated 30th
July, 2025 of co-ordinate Bench referred to supra, this Court
feels it apposite to condone the delay in preferring the instant
writ appeal and, accordingly, disposed of this writ appeal in
terms of said judgment dated 30th July, 2025. Pending
Interlocutory Application(s), if any, shall also stand disposed of.
(Harish Tandon)
Chief Justice
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Judge
Reason: Authentication MRS/Laxmikant
Location: High Court of Orissa, Cuttack
Date: 22-Aug-2025 17:15:29
