Orissa High Court
Orissa Water Supply And vs Bijay Kumar Samal & Ors on 30 July, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. NOS.857, 834, 842, 843, 844, 845,
846, 847, 848, 849, 850, 851, 852, 854,
855, 856, 858, 859, 860, 861, 862, 863,
864, 867, 868, 869, 870, 871, 872, 877,
878, 885, 887, 1181 & 1470 OF 2024
W.A. No.857 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 12794 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Bijay Kumar Samal & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. Smita Ranjan Patnaik, P.K. Mohanty,
S. Mohakhuda & P. Jena, Advocates
W.A. No.834 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 32358 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board, Bhubaneswar
-Versus-
Damayanti Panda and Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
Page 1 of 28
For Respondents : M/s. Jayant Kumar Rath, Sr. Advocate & Mr. S.
Mishra, Advocate
W.A. No.842 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 38359 of 2021.
Orissa Water Supply and
Sewerage Board .... Appellant
-Versus-
Hemanta Rout & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. Dinesh Kumar Panda & A.K. Mishra,
Advocates
W.A. No. 843 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 16750 of 2016.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Mamata Barik & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S.K. Sarangi & A.K. Nayak,
Advocates
Page 2 of 28
W.A. No. 844 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 330 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Mamita Dash & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : Mr. D. Mohapatra, Sr. Advocate with M/s. M.R.
Pradhan, J. Barik, S.K. Rout, P.K. Singhdeo &
C.K. Panda, Advocates
W.A. No. 845 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No. 20774 of 2017.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Tushar Ranjan Panda & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : Ms. Deepali Mohapatra, Advocate
W.A. No. 846 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.38263 of 2020.
Page 3 of 28
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Biren Kumar Singh & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. Sangram Mishra, P.Mishra, P.K. Mishra, J.R.
Kar & C. Mohanty, Advocates
W.A. No. 847 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12883 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Ajit Kumar Pradhan & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. P.K. Mohanty, S. Mahakuda &
P.Jena, Advocates
W.A. No. 848 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.38360 of 2021.
Orissa Water Supply and
Sewerage Board .... Appellant
-Versus-
Page 4 of 28
Ajay Kumar Rout & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. Dinesh Kumar Panda & A.K. Mishra
Advocates
W.A. No. 849 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.33741 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Akshay Kumar Bahinipati & Ors. .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S. Mishra & J. Mohanty, Advocates
W.A. No. 850 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.33741 of 2020.
Orissa Water Supply and
Sewerage Board .... Appellant
-Versus-
Surendra Kumar Das & Ors. .... Respondents
Advocates appeared in this case:
Page 5 of 28
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : None
W.A. No.851 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.3312 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Artatrana Majhee & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D.K. Panda & A.K. Mishra,
Advocates
W.A. No.852 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.36946 of 2020.
.... Appellant
Orissa Water Supply and
Sewerage Board
-Versus-
Dipak Kumar Raj & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
Page 6 of 28
For Respondents : M/s. T. Mishra, D.K. Patnaik & R. Mishra
Advocates
W.A. No.854 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12813 of 2011.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Sanjurani Pradhan .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : None
W.A. No.855 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.37693 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Sisir Kumar Sahoo .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : None
W.A. No.856 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.1509 of 2021.
Page 7 of 28
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Mamata Das .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : None
W.A. No.858 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.31275 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Gagan Bihari Sahoo & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. J. Mohanty, S. Mishra,
Advocates
W.A. No.859 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.205 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Bibhuti Bhusan Dash & others .... Respondents
Page 8 of 28
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : Mr.D. Mohapatra, Sr. Advocate with M/s. M.R.
Pradhan, J. Barik, S.K. Rout, P.K. Singhdeo &
C.K.Pradhan, Advocates
W.A. No.860 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.35612 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Bijay Kumar Bal & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S.K. Pal & Akhand, Advocates
W.A. No.861 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.24655 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Rajkishore Tripathy & others .... Respondents
Page 9 of 28
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : Mr. D. Mohapatra, Sr. Advocate with M/s. M.R.
Pradhan, J. Barik, S.K. Rout, P.K. Singhdeo &
C.K. Panda, Advocates
W.A. No.862 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.38270 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Panchanan Sahoo & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S. Mishra, P. Mishra, P.K. Mishra, J.R. Kar
& C. Mohanty, Advocates
W.A. No.863 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12796 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Prasant Kumar Mohanty & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
Page 10 of 28
For Respondents : M/s. S.R. Patnaik, P.K. Mohanty, B.P. Mohanty, A.
Patnaik, S. Mohakuda & P. Jena, Advocates
W.A. No.864 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.11337 of 2023.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Nalinikanta Jena & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D.K. Panda & A.K. Mishra 2, Advocates
W.A. No.867 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.8407 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Managobinda Das & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. P.K. Satapathy, P. Panda, S. Pati & P.K. Das,
Advocates
Page 11 of 28
W.A. No.868 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12795 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Satish Prasad Nanda & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S.R. Patnaik, P.K. Mohanty, B.P. Mohanty,
A. Patnaik, S. Mohakuda & P. Jena, Advocates
W.A. No.869 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.3314 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Kalucharan Jena & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D.K. Panda & A.K. Mishra 2, Advocates
W.A. No.870 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.38265 of 2020.
Orissa Water Supply and .... Appellant
Page 12 of 28
Sewerage Board
-Versus-
Laxmidhar Nayak & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S. Mishra, P. Mishra, P.K. Mishra, J.R. Kar &
C. Mohanty, Advocates
W.A. No.871 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12886 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Pramod Kumar Patra & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S.R. Patnaik, P.K. Mohanty, B.P. Mohanty,
A. Patnaik, S. Mohakuda & P. Jena, Advocates
W.A. No.872 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.3310 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
Page 13 of 28
-Versus-
Saruj Kumar Ray & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D. K. Panda & A.K. Mishra 2, Advocates
W.A. No.877 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.34683 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Sangram Kesari Bhuyan & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. T. Mishra, D.K. Patnaik & R. Mishra,
Advocates
W.A. No.878 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12885 of 2015.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Page 14 of 28
Tanmayee Mohanty & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. S.R. Patnaik, P.K. Mohanty, B.P. Mohanty, A.
Patnaik, S. Mohakuda, P. Jena, Advocates
W.A. No.885 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.3734 of 2021.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Khetrabasi Dash & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D.K. Panda, A.K. Mishra, Advocates
W.A. No.887 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.36947 of 2020.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Bibhuti Bhusan Das .... Respondents
Advocates appeared in this case:
Page 15 of 28
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. T. Mishra, D.K. Patnaik, R. Mishra,
Advocates
W.A. No.1181 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.7943 of 2024.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Santosh Kumar Sahu .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : M/s. D.K. Panda, A.K. Mishra, Advocates
W.A. No.1470 of 2024
Arising out of order dated 22.03.2024 passed by a learned Single Judge
of this Court in W.P.(C) No.12611 of 2024.
Orissa Water Supply and .... Appellant
Sewerage Board
-Versus-
Laxmipriya Mohanty & others .... Respondents
Advocates appeared in this case:
For Appellant : M/s. Sailaza Nandan Das & A. Acharya,
Advocates
For Respondents : None
Page 16 of 28
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
--------------------------------------------------------------------------------------
Date of hearing : 24.07.2025 : Date of judgment : 30.07.2025
--------------------------------------------------------------------------------------
PER DIXIT KRISHNA SHRIPAD, J.
All these Intra-Court appeals are by the Orissa Water
Supply and Sewerage Board. They seek to call in question the subject
orders rendered by learned Single Judges of this Court in the individual
writ petitions. All these orders in substance direct the Appellant Board
to absorb/regularize the services of Respondent-employees and that if
need be and to facilitate the same, posts be created/sanctioned by the
Government since they have been in continuous & spotless service for
more than two decades, the perennial nature of work specifically being
admitted by the Appellant-Board.
2. For the ease of reference, W.A. No. 857 of 2024 has been
taken up with the consent of the Bar as the lead case and relevant part of
impugned order dated 22.03.2024 entered in W.P.(C) No. 12794 of
2015 is reproduced:
"....In such view of the matter, the Opposite Parties
are directed to consider the case of the Petitioner
for regularization his service in the light of the
order passed by the Coordinate Bench referred to
hereinabove which has been confirmed by the
Hon'ble Supreme Court within a period of two
months....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 sanctioned 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." (sic)
3. After service of notice, the Respondent-employees, barring
a few, have entered appearance through their learned advocates.
Learned panel counsel appearing for the Board argued for the
invalidation of impugned orders, whereas learned advocates
representing the employees contended to the contra resisting the
appeals. We hasten to mention here itself that there is a consensus at
the Bar that all these appeals involve common questions of law & facts,
and therefore they be heard & decided by a common judgment,
notwithstanding minor variations in the pleadings of some of the
employees.
4. The gist of submissions made on behalf of Appellant-
Board is as under:-
(a) Regardless of length of service, employees of the kind are
not entitled to absorption/regularization in the absence of sufficient
number of sanctioned posts, especially when they were not working in
the vacancies of any posts and their initial entry to the employment
itself was illegal.
(b) Learned Single Judges grossly erred in directing creation
& sanctioning of posts, which prerogative invariably lies with the
Government, inasmuch as a host of factors enter the fray of such a
decision making.
(c) Learned Single Judges have accorded relief to the
employees in gross violation of law declared by the apex Court in State
of State of Karnataka v. Umadevi, 1.
In support of above submissions, learned Counsel pressed into service
certain rulings of the Apex Court.
5. In resistance to appeals, the following contentions are
urged on behalf of Respondent-employees:
(a) Appellant-Board being Article 12 entity under the
Constitution has to conduct itself as a Model Employer and provide
humane conditions of service for the workmen like the respondents as a
matter of constitutional imperative; the impugned orders being
animated by this view cannot be faltered.
(b) The long & spotless service of a quarter century
demonstrates perennial nature of the work and therefore the argument
that sufficient posts are not available for according absorption/
regularization would not avail to the Appellant-Board.
(2006) 4 SCC 1
(c) Appellant-Board is a Statutory Body under the pervasive
control of State Government, which is directed to create/sanction posts;
however, State not being in appeal, the Board cannot make a grievance
against the impugned orders. Although it is ordinarily a prerogative of
State/Employer, in the circumstances of the case, learned Single Judges
by way of exception have issued the direction, which is otherwise
sustainable, the argued priority not being an inviolable Thumb Rule
ever.
(d) The Appellant-Board is estopped from faltering the
impugned directions, having itself on multiple occasions recommended
to the State for the creation/sanction of sufficient number of posts after
ascertaining perennial nature of the work, which it has to accomplish
under the Scheme of subject Statute.
(e) Case of the Respondent-employees perfectly accords with
a catena of rulings of the Apex Court post Umadevi, beginning with
State of Karnatak v. M.L. Kesari,2, Jaggo v. UOI,3 decided on
20.12.2024 and after. Even otherwise, respondent-employees cannot be
discriminated in the matter of regularization qua other similarly
circumstanced candidates.
In support of their contentions, learned advocates banked upon a catena
of rulings.
6. Having heard learned counsel appearing for the parties and
having perused the appeal papers and having adverted to relevant of the
(2010) 9 SCC 247
2024 INSC 1034
rulings cited at the Bar, we decline indulgence in the matter for the
following reasons.
6.1. Appellant-Board is constituted under the provisions of the
Orissa Water Supply & Sewerage Board Act, 1991; the Board
discharges public functions with service rendered by Respondent-
employees since a quarter century or so, is not in dispute. It is obvious
that the work in question is perennial in nature and that these poor
employees have been accomplishing the same with no complaint
whatsoever. It is also not in dispute that the Board, being the employer
in terms of Section 9 of the Act, has engaged the services of these
respondents, there being no regular recruits, despite its recommendation
to the State Government on several occasions. This being the position,
the Appellant-Board, being an instrumentality of State under Article 12
of the Constitution of India, has to conduct itself as a Model Employer,
vide Bhupendra Nath Hazarika v. State of Assam,4. It
hardly needs to be stated that there is Preambular Socialistic Pattern
prescribed by the Constitution itself and therefore such an
instrumentality cannot take up a stand that runs contrary to the same,
apart from being bereft of elements of justice & fair play. After all, a
Statutory Body like the Appellant-Board cannot run its ordained
functions as East India Company of bygone era.
6.2. The vehement submission of learned panel counsel
appearing for the Board that the very initial entry of the respondents to
the service is illegal and therefore no regularization/absorption would
have been granted in terms of Umadevi supra cannot be acceded to and
AIR 2013 SC 234
reasons for this are many: Firstly, Section 9(1) of the Act says "The
Board may appoint such officers and employees as it considers
necessary for the efficient performance of its duties and discharge of its
functions against posts sanctioned by the State Government."
Secondly, it is specifically admitted in the statement of objections filed
in the writ petitions that the Board has engaged the services of these
respondents. It is not the contra case of the Board and it cannot be
either, the battle lines having been drawn up both the sides having filed
their pleadings. It need not be stated that an admission in the pleadings
is a substantive piece of evidence, if not a sacrosanct one. Therefore,
the ratio in Umadei supra would not come to the aid of Appellant-
Board, initial entry being absolutely legal.
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 Fedric 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.
6.4. The next submission of panel counsel appearing for the
Board that it is the prerogative of State Government under Section 9 to
create & sanction posts is only a half legal truth. The text of said
provision, which is already reproduced above, prescribes only a
sanction for the posts that needs to be created by the Board itself. If the
legislature intended the view of Board, it would have possibly
employed the expression "posts created and sanctioned by the
Government" or "posts sanctioned and created by the Government".
However, that is not the nature of language here. Ordinarily,
sanctioning follows the creation of posts in service jurisprudence.
Added, power to appoint would necessarily include all ancillary
powers, such as creating of posts to facilitate appointment. No rule or
ruling is brought to our notice to sustain a view in variance. We note
that the Appellant-Board is not a Department of the Government, which
works as its limb but is a statutory entity having a fair degree of
autonomy. This aspect has to enter the construing of Section 9(1) of the
Act to make it meaningful, if not functional. We fail to understand, why
the Board failed to create posts without abdicating that power and
thereafter to seek sanction of the Government. However, it is strange
that the converse is practised.
6.5. The vehement submission of learned panel counsel for the
Board that it is invariably the prerogative of Government to create posts
and Court cannot interfere in any circumstance vide UOI v. Ilmo Devi,5,
again is difficult to completely agree with and reasons of this are not far
to seek: Firstly, as already mentioned above, ordinarily power to
appoint includes, power to create posts, unless the statute otherwise
says; that otherwise is missing here. Apparently, State is not the
appointing authority, although it has power to sanction the posts. It
remains a riddle wrapped in enigma as to why the Board abdicated its
power of creating posts in favour of the Government contrary to the
policy enacted in Section 9(1) of the Act. It is not that there is no
circumstance warranting creation of posts, when Board itself had asked
for such creation & sanction at the hands of Government, more
particularly when the engaged personnel have been working since last a
quarter century or so. Power to create posts, as already mentioned
above, lies with the Board and it is coupled with a duty as well,
inasmuch as the legislature has employed the word „power‟ in this
provision and not the word „discretion‟. Board cannot say such power is
its prerogative and a Constitutional Court cannot regulate it. There is
nothing like absolute power or prerogative, "limited Government"
being one of the basic features of our Constitution. A contra argument
counters the rule of law.
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
2021 SCCOnline (SC) 899
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) No. 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,6. 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
2023 LiveLaw (SC) 520
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,7 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
(2024) 1 SCR 1230
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.
(Dixit Krishna Shripad)
Judge
Mruganka Sekhar Sahoo,J. I agree.
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack
The 30th day of July, 2025/GDS/Prasant
Designation: JOINT REGISTRAR-CUM-PRINCIPAL
