[Cites 9, Cited by 0]
Orissa High Court
Ganesh Chandra Bhuyan vs State Of Odisha & Others on 15 December, 2025
IN THE HIGH COURT OF ORISSA, CUTTACK
W.A. No.3071 of 2023
(Arising out of judgment dated 15.11.2023 passed by
learned Single Judge in WPC(OAC) No.2180 of 2016)
Ganesh Chandra Bhuyan
and another ....... Appellants
-Versus-
State of Odisha & others ....... Respondents
W.A. No.296 of 2025
(Arising out of judgment dated 15.11.2023 passed by
learned Single Judge in WPC(OAC) No.2180 of 2016)
State of Odisha & others ....... Appellants
-Versus-
Ganesh Chandra Bhuyan
and another ....... Respondents
Advocate for the parties
For Appellants : Mr. B. Routray,
(In W.A. No.3071 of 2023) Sr. Advocate
For Appellants : Mr. S.K. Jee,
(In W.A. No.296 of 2025) Addl. Govt. Advocate
For Respondents : Mr. S.K. Jee,
(In W.A. No.3071 of 2023) Addl. Govt. Advocate
For Respondents : Mr. B. Routray,
(In W.A. No.296 of 2025) Sr. Advocate
----------------------------
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE SANJAY KUMAR MISHRA
JUDGMENT
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Date of Hearing: 16.10.2025 Date of Judgment:15.12.2025
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S.K. Mishra, J. Writ Appeal No.3071 of 2023 has been preferred
by the Appellants, who were the Petitioners in WPC (OAC)
No.2180 of 2016, against the Judgment dated 15.11.2023
passed by the learned Single Judge in WPC (OAC) No.2180 of
2016 with a prayer to modify the said judgment and direct the
Respondent No.1 to regularize their services.
Similarly, Writ Appeal No.296 of 2025 has been
preferred by the State of Odisha and others, who were the
Opposite Parties in WPC (OAC) No.2180 of 2016, with a
prayer to set aside the said judgment dated 15.11.2023
passed in WPC (OAC) No.2180 of 2016.
2. The parties to the above Appeals being same and
the impugned judgment in both the Writ Appeals being same,
involving the issue regarding regularization of the services of
the Appellants in Writ Appeal No.3071 of 2023, both the Writ
Appeals were taken up together for hearing and final disposal
and are being disposed of vide this common Judgment.
3. It is pertinent to mention here that, the Appellants
in Writ Appeal No.3071 of 2023 preferred O.A. No.2180 (C) of
2016 before the Odisha Administrative Tribunal with a prayer
to set aside the notice declaring the result in connection with
Advertisement No.9119 dated 17.12.2015, read with
Corrigendum No.9381 dated 28.12.2015. On abolition of
Odisha Administrative Tribunal, the said case, being
transferred to this Court, was re-registered as WPC (OAC)
No.2180 of 2016 and disposed of vide the impugned
judgment.
4. Mr. Routray, learned Senior Counsel for the Appellants
in Writ Appeal No.3071 of 2023, drawing attention of this
Court to various paragraphs of the impugned Judgment
passed by the learned Single Judge, so also relying on the
judgments in Jaggo Vs. Union of India, reported in AIR
2025 SC 296, Sripal Vs. Nagarnigam, Gagiabad, reported
in 2025 SCC OnLine SC 211, judgment dated 19.08.2025 of
the Supreme Court in Dharam Singh & Ors. Vs. State of
U.P. & Ors. passed in Civil Appeal No.8558 of 2018, so also
judgment of this Court dated 08.07.2025 passed in W.A.
No.2629 of 2024 (State of Odisha & anr. Vs. Bjay Kishan
Nath and Ors.), vehemently argued that, in view of the
findings of the learned Single Judge in the impugned
judgment, direction ought to have been given for
regularization/permanent absorption of the Petitioners
against the created posts, instead of relegating them again to
the authority concerned for disposal of their representation,
which is pending since 2014 despite direction of the learned
Tribunal in O.A. No. 2367 (C ) of 2014.
5. Learned Senior Counsel further submitted that
when the posts were created for absorbing/accommodating
the Appellants and similarly placed two others, the Authority
concerned was not justified to go for an open advertisement
for filling up those posts.
6. Per contra, learned State Counsel, relying on the
Judgment in Secretary, State of Karnataka & others Vrs.
Umadevi & others, (2006) 4 SCC 1, submitted that the
Appellants in W.A. No.3071 of 2023 had no right to claim for
regularization of their services even though their cases were
recommended by the authority concerned for their permanent
absorption/regularization. Such appointments being made on
contractual basis and they being paid from the funds
generated from users fee, the Appellants have no right to
claim regularization on the plea of creation of posts, which
were created subsequent to their appointment.
7. After taking note of the submissions made by the
learned Counsel for the parties so also going through the
impugned Judgment passed in WPC (OAC) No.2180 of 2016,
we feel it appropriate to reproduce below the relevant
paragraphs from the impugned Judgment, vide which the
learned Single Judge, after taking into consideration the
pleadings on record, submissions made by the learned
Counsel for the parties so also the case laws cited by the
learned counsel for the parties, made certain observations so
also gave his findings, which are relevant for proper
adjudication of the present Appeals.
"9. It is gathered from the pleadings, arguments and
submissions with reference to the Odisha Group-C and
Group-D Posts (Contractual Appointment) Rules, 2013
as amended by virtue of the Odisha Group-C and Group-D
Posts (Contractual Appointment) Amendment Rules,
2017 that,
i. the petitioners have been working as ECG
Technician in the Cardiology Department
on contractual basis continuously since
2011;
ii. the petitioners have been selected by a
process of selection pursuant to
Advertisement published on 17.11.2010
in "the Sambad", an Odia daily;
iii. out of the seven candidates selected in
the selection process, four were given
appointment in Trauma Care Centre
and the left out three candidates
including the petitioners were engaged
in the Cardiology Department on
contractual basis;
iv. the report submitted by the Administrative
Officer, SCBMCH on 06.08.2015, describing
the background under which the petitioners
were engaged to work as ECG Technician
in the Cardiology Department, was in
compliance of direction of the Government of
Odisha in Health & Family Welfare
Department to the Director of Medical
Education & Training, Odisha, with
reference to the Order dated 31.10.2014
passed by the learned Odisha
Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No.2367 of 2014, which was
much prior to Advertisement No.9119, dated
17.12.2015;
v. it has been admitted by the opposite parties in
the counter affidavit at paragraph 6 that "the
petitioners have been discharging their
duties in Cardiology Department
satisfactorily since their joining";
vi. it is also admitted by the opposite
parties in the said paragraph of the
counter affidavit that "due to
unavailability of any sanctioned posts,
higher authorities have been moved time
and again";
vii. it has been candidly stated by the opposite
parties in paragraph 6 of counter affidavit
that letters were issued to the
Government "requesting for creation of
further posts of ECG Technicians for
absorption of the petitioners" as there is
"requirement of ECG Technicians keeping
in view of increase in number of
patients", in pursuance of which four posts of
ECG Technician are created by the
Government.
9.1 While the aforesaid position remained undisputed, it
is not denied that the petitioners had been sent for 90
days to participate in the Training Programme on Theory
and Hands on Practical along with other ECG
Technicians, which they have been certified to have
completed successfully. Since 2012 the authorities
at SCBMCH have been requesting for creation of
ECG Technician posts and requesting for
regularization of the petitioners as there is need for
such posts. It is not the case of the opposite parties
that the petitioners were not selected by a selection
process and their engagement was not pursuant to
Advertisement dated 17.11.2010.
11. Though in the affidavit dated 28.08.2023 sworn
to by the Registrar (Administration)-cum-General
Superintendent, SCBMCH on behalf of the opposite
party No.3 it has not been disputed that the petitioners
have been working as ECG Technician since 2011 in the
Cardiology Department after being selected by the
Selection Committee in connection with Advertisement
published on 27.11.2010, it is asserted that "the
Advertisement dated 17.11.2010, where under the
petitioners were applicants, was issued to fill four
posts of ECG Technician in the Trauma Care Centre"
and "the petitioners were not selected against said
posts". This statement appears to be in conflict with
"List of candidates for selection for the post of ECG
Technician" appearing at Annexure-2 to the writ
petition, where the petitioner No.1 was shown at
serial No.1 and the petitioner No.2 at serial
No.6. Since three selected candidates were left
out after four selected candidates were engaged
to work in the Trauma Care Centre, the
petitioners were "appointed" as ECG Technician in
the Cardiology Department of SCBMCH on
contractual basis with remuneration of Rs.5,200/-.
However, the Superintendent of SCBMCH in Memo
No.1836, dated 09.08.2019 referring to RDC (CD)
Letter No.6086, dated 11.07.2019 and G.A.
Department Notification No.19575/Gen, dated
12.09.2017 extended the benefit to the petitioners
"to draw their monthly remuneration @ Rs.15,300/-
with effect from 01.07.2019" which is in
consonance with Annexure appended to the
Odisha Group-C and Group-D Posts (Contractual
Appointment) Rules, 2013 as amended by virtue of
the Odisha Group-C and Group-D Posts
(Contractual Appointment) Amendment Rules, 2017.
It is also noteworthy that the Administrative
Officer of the SCBMCH has allowed the petitioner
No.1 to avail Earned Leave from 05.02.2021 to
11.02.2021. Under such premise, it has been argued by
Sri Budhadev Routray, learned Senior Advocate that it is
difficult to concede to the assertion of the opposite party
No.3 in the said affidavit dated 28.08.2023 that "the
petitioners' appointment are ad hoc and de hors any
process of law and they cannot claim any right under
the Odisha Group-C and Group-D Posts (Contractual
Appointment) Rules, 2013".
11.2. No material is placed by the petitioners to show
that their engagement would be comprehended within
the fold of Category-I as per Rule 4 afore-quoted. Rule
8, manifests that it is applicable to Category-I and
Category-II employees. However, Rule 11 spells out
that where the contractual employee is less than 45
years of age and completed at least one year of
continuous service, such employee could be given
scope to apply for Recruitment under sub-rule (1) of
Rule 5 for any Group-C and Group-D posts and upper
age can be relaxed for entry into Government
service. As it transpires from the material placed on
record, no opportunity is afforded to the
petitioners neither in terms of Rule 8 nor in terms of
the decisions/Judgments as discussed in the
foregoing paragraphs. Therefore, this Court
refuses to accede to the contention of the Sri
Biplab Mohanty, learned Additional Government
Advocate with reference to paragraph 8 of the
affidavit dated 28.08.2023 of the opposite party
No.3 to the effect that "the petitioners are barred
from participating in recruitment process under
the said advertisement because of the prescribed
age limit of 32 years". At the cost of repetition it is
reiterated that the requisite qualification has never been
objected to by the opposite parties; rather after
selection being made in the year 2011, the petitioners
successfully completed 90 days' Training Programme of
Theory and Hands on Practical. It is also placed on
record by the petitioners that their names were sent
to the Government of Odisha in Health and Family
Welfare by the authorities of SCBMCH for consideration
of regularization in service as ECG Technician much before
the publication of Advertisement dated 17.12.2015.
12. There is no material placed on record by the
opposite parties that the petitioners have been
lacking any qualification or bore any blemish
record during his employment since 2011. The
petitioners were selected by a selection process
conducted by a duly constituted Selection
Committee. Pursuant to recommendation of their
names for regularization, posts of ECG Technician
were created. Since there is nothing on record to
appreciate the details whether any other ECG
Technician was appointed against the four sanctioned
posts, in the facts and circumstances of the case, this
Court is inclined to issue writ of mandamus to the
opposite parties to consider the case of the petitioners
for regularization."
(Emphasis Supplied)
8. On perusal of the impugned Judgment, it is amply
clear that when the Appellants in W.A. No.3071 of 2023 were
appointed in the year 2011, their appointments were
contractual. However, on being recommended by the
authority of the SCB Medical College & Hospital, shortly
hereinafter, "SCBMCH", four posts of ECG Technicians were
created by the Government of Odisha in the Health and
Family Welfare Department vide Order dated 05.05.2014.
However, without considering the case of the
Appellants/Petitioners for their regularization/permanent
absorption in the said created posts, Advertisement No.9119
dated 17.12.2015, followed by Corrigendum No.9381 dated
28.12.2015 were issued to fill up those posts through open
advertisement. Hence, being aggrieved, the Appellants
approached the Odisha Administrative Tribunal with the
aforesaid prayer.
9. It is also revealed from the record that such posts
were created by the Government on recommendation of the
authority concerned to absorb the present Appellants in Writ
Appeal No.3071 of 2023. The learned Single Judge dealt with
the admitted facts on record, as extracted above, and also
took note of the admission made in the Counter filed in WPC
(OAC) No.2180 of 2016 regarding creation of posts for
absorbing/accommodating the Appellants in Writ Appeal
No.3071 of 2023. However, instead of giving direction to the
authority concerned to permanently absorb the Appellants in
Writ Appeal No.3071 of 2023, the learned Single Judge
relegated them to the authority concerned to dispose of their
representation, which is pending since 2014, despite direction
given by the Odisha Administrative Tribunal vide order dated
31.10.2014 in O.A. No.2367(C) of 2014. The said admission
made in the Counter, which was dealt in Para 3.1 of the
impugned Judgment, being relevant, is extracted below:
"3.1 It is also stated in the counter affidavit that
since the petitioners have been discharging duties
"satisfactorily since their joining", the opposite parties
have been moving the Department of Health and Family
Welfare for creation of posts and at paragraph 6 it has
been stated as follows:
"*** It is further humbly stated that the
petitioners have been discharging their duties in
the Cardiology department satisfactorily since
their joining and are being paid consolidated
remuneration from Users Fund to cater the
needs of the Department and the hospital as a
whole. Due to unavailability of any
sanctioned posts, higher authorities have
been moved time and again. vide office
Letter No.20301, dated 15.09.2012, Letter
No.3768, dated 16.02.2013, Letter
No.17872, dated 06.08.2015, Letter
No.4774, dated 27.02.2019 & Letter
No.6688, dated 15.03.2019 requesting for
creation of further posts of ECG
Technicians for absorption of the
petitioners following due procedure as
there is dearth requirement of ECG
Technicians keeping in view of increase in
number of patients. ***"
(Emphasis supplied)
10. Similarly, paragraphs 13.1 & 13.2 of the impugned
Judgment, being relevant, are reproduced below:
"13.1. The petitioners, as it appears, have been
selected by a duly constituted Selection
Committee and have been discharging their
duties to the satisfaction of the opposite parties,
which fact has been admitted by the opposite
parties in their counter affidavit. The opposite
parties have raised no objection as to the
requisite qualification to hold the post of ECG
Technician, which the petitioners do possess.
Moreover, their names were recommended by the
Professor & Head of Department vide Letter
No.613, dated 06.08.2013 to the Government of
Odisha in Health and Family Welfare Department. A
Report dated 06.08.2015 prepared by
Administrative Officer, SCBMCH containing detail
description of fact with recommendation to
consider the case of the petitioners, as asked for
in connection with the direction of the Odisha
Administrative Tribunal in Order dated
31.10.2014, was also communicated to the
opposite party No.1. As the representations of the
petitioners are pending consideration, interest of justice
would be best met if the opposite party No.1 is directed to
consider the same. Hence said opposite party No.1 is
hereby directed to consider the representation(s) of the
petitioners in the light of the discussions made above with
reference to the decisions rendered by different Courts.
13.2. Needless to observe that for taking appropriate
decision as directed supra the opposite party No.1 is
required to bear in mind that the petitioners have
been continuously working as ECG Technician with
requisite qualification. Their names were
recommended for regularization in the service by
the authority concerned much prior to
publication of Advertisement dated 17.12.2015. It
may also be taken note of that the opposite party
No.1 in connection with Order dated 31.10.2014 passed
by the Odisha Administrative Tribunal called for
report/detailed fact-sheet, which is directed to be
considered at the time of disposal of representation(s) of
the petitioners."
(Emphasis supplied)
11. On perusal of records, it is ascertained that, in
the previous O.A. ,i.e., O.A. No.2367 (C) of 2014, the
Administrative Tribunal disposed of the said O.A. directing
the Commissioner-cum-Secretary Health and Family Welfare
Department, Bhubaneswar to treat the contents of the said
O.A. as the representation of the Petitioners, who were the
Applicants in the said O.A., and to consider their case for
contractual appointment against the posts created vide order
dated 05.05.2014, with a further direction to dispose of the
same as per rules and laws in force in the said regard within
a period of two months from the date of receipt of the said
order.
12. Further, as is revealed from the records in O.A.
No.2367 (C) of 2014, which was re-registered as WPC(OAC)
No.2180 of 2016, while issuing notice on admission, so far
as prayer for interim relief is concerned, it was ordered that
the Respondent-Authorities shall proceed with the
recruitment process, which was impugned in the O.A., but
shall not issue final appointment order without considering
the representation of the present Appellants in terms of the
order of the learned Tribunal in O.A. No.2367 (C) of 2014.
13. Despite such clear cut observation/ order passed
in WPC (OAC) No.2180 of 2016, so also previous order passed
in O.A. No.2367 (C) of 2014, the authority concerned neither
considered/disposed of the representation of the Applicants
nor proceeded further with the recruitment process. Rather
the Appellants in W.A. No. 3071 of 2023 have been allowed to
continue in the said posts of ECG Technician on contractual
basis by paying them a consolidated paltry amount and as on
date both of them have worked for more than 15 years
continuously, though the recommendations on record, as
detailed above, well indicate that they were selected by
following due procedure of selection and thereafter they were
sent for training. That apart, in the said recommendations it
has been mentioned that their services are highly required to
meet the existing demand / requirement of ECG Technicians
in the Cardiology Department of SCBMCH, for which, on
being so recommended, the State Government created 4 nos.
of post of ECG Technicians way back in the year 2014.
14. It is noteworthy to state that an Educational
Institution so also Hospital is an "Industry", as held by the
Constitution Bench in Bangalore Water Supply &
Sewerage Board v. A. Rajappa, reported in (1978) 2 SCC
213, followed by the judgment in AIIMS Vs. Raj Singh,
reported in (2017) 12 SCC 803. Hence, SCB Medical College
and Hospital falls under the definition of "Industry". So far as
the present Appellants in WA No.3071 of 2023, who are
working for the last 15 years as ECG Technicians, their
nature of job being technical, are "workmen", as defined
under Section 2 (s) of the Industrial Disputes Act, 1947,
shortly hereinafter, "I.D. Act".
15. So far as "Unfair Labour Practice", the same has
been defined under Section 2 (ra) read with 5th Schedule of
the I.D. Act. Item No.10 in the 5th Schedule, under the
heading "I-On the part of the employers and trade unions
of employers", brings the act of the Employer under the
ambit of unfair labour practices, if the Employer employs any
workmen as badlis, casuals or temporaries and continue
them as such for years, with an object of depriving them the
privileges of permanent workmen. Section 25T of the I.D. Act
prohibits the Employer or Workmen or a Trade Union
registered under Trade Unions Act, 1926 from committing any
unfair labour practices. Section 25U of the I.D. Act prescribes
penalty for committing unfair labour practices.
16. Admittedly, the present Petitioners, who were
selected pursuant to an open advertisement and regular
selection process, were engaged as contractual workers in the
year 2011. However, as on the date of their engagement as
E.C.G. Technicians, there were no posts. Their nature of job
being permanent and perennial, so also being recommended
by the authority of SCBMCH, posts of E.C.G. Technicians
were created by the State Government. Despite creation of
posts of E.C.G. Technician in the year 2014, the Petitioners
are working for the last 15 years as such, being styled as
contractual employees, thereby debarring them from
becoming permanent.
17. Hence, we are of the view that such conduct of the
State Authorities, styling the Appellants as contractual
employees for years together and debarring them from
becoming permanent on such plea, amounts to "unfair labour
practice".
18. In view of the undisputed facts on record, detailed
discussion made in the impugned judgment so also views
expressed by the learned Single Judge, we are of the view that
though the initial appointments of the Appellants in W.A.
No.3071 of 2023 were irregular, it cannot be said to be illegal.
That apart, on repeated recommendations of the Authority
concerned, the State Government created four posts of E.C.G.
Technician. Hence, we are of further view that the action of
the authority concerned to make the Advertisement dated
17.12.2015 to fill up the said created posts by way of an open
advertisement was uncalled for and the impugned Judgment
dated 15.11.2023 passed by the learned Single Judge in WPC
(OAC) No.2180 of 2016 needs modification, as prayed by the
Appellants in W.A. No.3071 of 2023.
19. Accordingly, the prayer made in Writ Appeal
No.3071 of 2023 is allowed. The Respondents are directed to
absorb the Appellants against the sanctioned vacant posts of
ECG Technician and extend all the service benefits, as due
and admissible to the posts of ECG Technician, within a
period of three months hence.
20. Accordingly, the Writ Appeal No.3071 of 2023 is
allowed and disposed of. Consequently, the Writ Appeal
No.296 of 2025 preferred by the State-Respondents stands
dismissed.
.............................
S.K. MISHRA
Judge
Dixit Krishna Shripad, J. I agree
.......................................
Dixit Krishna Shripad
Judge
Orissa High Court, Cuttack
Dated 15th December, 2025/Prasant
Signed by: BANITA PRIYADARSHINI PALEI
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 15-Dec-2025 14:50:56
