"Office of the Puri Municipality, Puri
No.3239 (Office Order) dated 13.05.2011
Office Order No.3162, 3165, 3168 and 3171, dated
11.05.2011 issued by this Office for regularisation of
temporary staff in different scale of pay are hereby
kept in abeyance until clearance from Government in
Housing and Urban Development Department is
received in this regard.
2.9. The petitioner is before this Court in the instant writ
petition challenging the propriety of instruction of
Government in Letter No.14449/HUD, dated 13.06.2011
(Annexure-13) and legality of Office Order No.3239,
dated 13.05.2011 (Annexure-14) whereby Office Order
Nos.3162, 3165, 3168 and 3171, dated 11.05.2011 were
kept in abeyance as well as Office Order No.4113, dated
13.06.2011 of the Puri Municipality (Annexure-15)
cancelling Office Order Nos.3162, 3165, 3168 and 3171,
dated 11.05.2011 by virtue which the services of the
petitioners were regularised.
3.4. Since the writ petition has been pending adjudication
since 2011 and the opposite parties have not paid any
heed to file any response despite adjournments, this
Court was left with no option but to proceed with the
case on merit.
3.5. It is not the case of the opposite parties that they had
been under disability nor can the State instrumentalities
be said to be under some disability. No explanation has
ever been furnished as to why the counter affidavit had
not been filed. The opposite parties cannot be permitted
to take advantage of their own mistake. A person
alleging his own infamy cannot be heard at any forum,
particularly so before a Writ Court. The legal maxim
'allegans suam turpetudinem non est audiendus' fits to
the context. If the opposite parties have committed a
wrong by not filing the counter-affidavit, they cannot be
permitted to take the benefit of their own wrong. (Vide
G.S. Lamba Vrs. Union of India, AIR 1985 SC 1019;
Narender Chadha Vrs. Union of India, AIR 1986 SC 638;
Jose Vrs. Alice, (1996) 6 SCC 342; T. Srinivasan Vrs. Mrs.
T. Varalakshmi, (1998) 3 SCC 112).
3.6. In view of the above, if the counter affidavit is not filed,
and no explanation is proffered by the opposite parties,
for such lackadaisical attitude this Court has justified
reason to decide the case on the basis of the averments
in the writ petition, which has been pending since 2011.
3.7. This Court expressed the following view in Pratap Kumar
Jena Vrs. Government of Odisha, 2016 SCC OnLine Ori
830:
"25. In Ram Bhual Vrs. Ambika Singh, JT (2005) 12 SC
49 = (2005) 12 SCC 121, the apex Court held that
where specific pleadings in election petition has not
been denied by the opposite party in his written
statement while answering the pleadings, applying
the doctrine of non-traverse, it can be said that on
the pleadings, the case of the election petitioner on
this aspect is established.
26. In Pyrites Phosphates & Chemicals Ltd. Vrs. State of
Bihar, AIR 1998 Pat 57, the High Court of Patna held
as follows:
'One cannot be allowed to frustrate the process of
the Court by adopting the easy option of non-
appearing despite valid service of notice. On the
basis of doctrine 'non-traverse' i.e. acceptance by
non-denial, it was held that the claim of the
petitioner is not denied but accepted by the
respondents.'
27. Applying the very principle of non-traverse to
the present context, since the opposite parties
have not filed the counter affidavit in the
present case to controvert the contention
raised in the writ application, the facts which
have been pleaded by the petitioner are deemed
to be admitted. Therefore, any argument advanced
by the learned counsel appearing for the opposite
parties cannot sustain in absence of any pleadings
thereof."
3.8. Bearing in mind above exposition of law, this Court
heard Sri Hrudananda Mohapatra, learned Advocate for
the petitioner and Sri Jayant Kumar Bal, learned
Additional Government Advocate and Sri Santosh Kumar
Brahma, learned Additional Standing Counsel for the
opposite party Nos.1 to 3 and Sri Pranoy Mohanty,
learned Advocate assisting Sri Pradipta Mohanty,
learned Senior Advocate appearing for the opposite party
No.4-Puri Municipality.
3.9. On conclusion of hearing, the matter stood reserved for
preparation and pronouncement of judgment.
Rival contentions and submissions:
4. Reiterating the facts as narrated in the writ petition, Sri
Hrudananda Mohapatra, learned Advocate submitted
that time and again the Puri Municipality took decision
to regularise the petitioners considering length of service
and seniority in consonance with the norms specified in
Finance Department Resolution dated 15.05.1997 and
finally regularised the service of temporary staff working
in Class-IV category by Office Order dated 11.05.2011
against vacant posts. Such decision or action of the Puri
Municipality could not have been branded as
"unauthorised regularisation" by the Government of
Odisha in Housing and Urban Development Department.
4.1. Laying stress on the Notice dated 25.11.2010 (Annexure-
10), Sri Hrudananda Mohapatra, learned Advocate drew
attention of this Court to the following fact:
Name Designation Date of engagement
Nabakishore Nayak Peon 08.02.1993
Gangadhar Mandal Helper now Peon 24.04.1995
Krushna Ch. Bhoi Hammerman 02.09.1993
Purna Chandra Nayak Helper 03.04.1995
Kailash Chandra Sethi Light Helper 31.05.1995
Ramakanta Das Peon 24.09.1993
Rabinarayan Samal Helper 21.10.1993
4.2. He would, thus, urge that for a long period the Puri
Municipality has been exploiting the service of the
petitioners which would entail them to claim for
regularisation in service and rightly so the Puri
Municipality resolved vide Council Resolution No.16
dated 13.09.2010 to regularise the service of the
petitioners. Therefore, the Office Order dated 11.05.2011
issued in favour of the petitioners by regularising their
services does not warrant intervention of this Court.
4.3. Sri Hrudananda Mohapatra, learned Advocate laid
strong emphasis that having put in service for more than
a decade since their engagement in 1993/1995, when
their cases were considered for regularisation and their
services, in fact, were regularised against vacant post
vide Office Order dated 11.05.2011, cancelling the same
without assigning any reason, much less cogent reason,
would tantamount to arbitrary and whimsical exercise of
power. Therefore, he prayed for quashing of the
instruction of the Housing and Urban Development
Department and the consequential orders passed by the
Puri Municipality in obedience to such instruction of the
Government of Odisha.
5. Sri Jayant Kumar Bal, learned Additional Government
Advocate and Sri Santosh Kumar Brahma, learned
Additional Standing Counsel would submit that though
instructions were sought for since long, no response is
received from the opposite party Nos.1 to 3. However, it
is submitted that the impugned Letter dated 13.06.2011
(Annexure-13) issued by the Housing and Urban
Development Department, though does not disclose
reason, instructions were issued to the Puri Municipality
to cancel the Office Orders whereby regularisation of
services of the petitioners were accorded inasmuch as
such action for regularisation is "unauthorised".
6. Sri Pranoy Mohanty, learned Advocate assisting Sri
Pradipta Mohanty, learned Senior Advocate supporting
the Resolutions of the Puri Municipality as enclosed to
the writ petition would submit that the action under
Annexures-14 and 15 have been taken by cancelling the
regularisation in service vide Office Order dated
11.05.2011 in consonance with the instruction
contained in Letter dated 13.06.2011 of the Housing and
Urban Development Department.
Analysis and discussion:
7. By virtue of Finance Department Resolution dated
15.05.1997, the Puri Municipality resolved to regularise
the services of those temporary staff (DLR), who were
engaged for 240 days in a year coupled with the
condition that they had completed 10 years of service.
Consequent upon such resolution, in subsequent
meetings it was resolved to regularise the service of
petitioners in order of seniority against vacant posts
having regard to the Housing and Urban Development
Department Letter No.36051, dated 15.12.2000.
Accordingly, Office Order dated 11.05.2011 was issued
by the Office of Puri Municipality wherein the services of
the petitioners, Class-IV employees, were "regularised"
"against the vacant posts".
7.1. Sri Hrudananda Mohapatra, learned Advocate referred to
paragraphs 5, 6, 7 and 8 of Vinod Kumar and others Vrs.
Union of India and others, reported in (2024) 1 S.C.R.
1230 = (2024) 9 SCC 327, wherein the Hon'ble Supreme
Court has been pleased to observe as follows:
"5. Having heard the arguments of both the sides, this
Court believes that the essence of employment and
the rights thereof cannot be merely determined by
the initial terms of appointment when the actual
course of employment has evolved significantly over
time. The continuous service of the appellants
in the capacities of regular employees,
performing duties indistinguishable from those
in permanent posts, and their selection through
a process that mirrors that of regular
recruitment, constitute a substantive departure
from the temporary and scheme-specific nature
of their initial engagement. Moreover, the
appellants' promotion process was conducted and
overseen by a Departmental Promotional Committee
and their sustained service for more than 25 years
without any indication of the temporary nature of
their roles being reaffirmed or the duration of such
temporary engagement being specified, merits a
reconsideration of their employment status.
6. The application of the judgment in State of
Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 by the
High Court does not fit squarely with the facts at
hand, given the specific circumstances under which
the appellants were employed and have continued
their service. The reliance on procedural
formalities at the outset cannot be used to
perpetually deny substantive rights that have
accrued over a considerable period through
continuous service. Their promotion was based on
a specific notification for vacancies and a
subsequent circular, followed by a selection process
involving written tests and interviews, which
distinguishes their case from the appointments
through back door entry as discussed in State of
Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1.
7. The judgment in State of Karnataka Vrs.
Umadevi (3), (2006) 4 SCC 1 also distinguished
between "irregular" and "illegal" appointments
underscoring the importance of considering
certain appointments even if were not made
strictly in accordance with the prescribed Rules
and Procedure, cannot be said to have been
made illegally if they had followed the
procedures of regular appointments such as
conduct of written examinations or interviews
as in the present case. Para 53 of State of
Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 is
reproduced hereunder:
'53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in State of Mysore
Vrs. S.V. Narayanappa, 1966 SCC OnLine SC
23, R.N. Nanjundappa Vrs. T. Thimmiah, (1972)
1 SCC 409 and B.N. Nagarajan Vrs. State of
Karnataka, (1979) 4 SCC 507 and referred to in
para 15 above, of duly qualified persons in
duly sanctioned vacant posts might have been
made and the employees have continued to
work for ten years or more but without the
intervention of orders of the courts or of
tribunals. The question of regularisation of the
services of such employees may have to be
considered on merits in the light of the
principles settled by this Court in the cases
above referred to and in the light of this
judgment. In that context, the Union of India,
the State Governments and their
instrumentalities should take steps to
regularise as a one-time measure, the services
of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts
but not under cover of orders of the courts or of
tribunals and should further ensure that
regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled
up, in cases where temporary employees or
daily wagers are being now employed. The
process must be set in motion within six
months from this date. We also clarify that
regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further
bypassing of the constitutional requirement and
regularising or making permanent, those not
duly appointed as per the constitutional
scheme.'
8. In the light of the reasons recorded above, this
Court finds merit in the appellants' arguments
and holds that their service conditions, as
evolved over time, warrant a reclassification
from temporary to regular status. The failure to
recognise the substantive nature of their roles
and their continuous service akin to permanent
employees runs counter to the principles of
equity, fairness, and the intent behind
employment regulations."
7.2. It is apt to refer to the anxious consideration shown by
the Madras High Court in N. Karunanidhi Vrs. Union of
India, W.P. No. 12887 of 2016, vide Judgment dated
22.04.2022 made with respect to exploitation of service.
The following benevolent observation has been made by
said Court in favour of employees, whose services have
been utilized by the Government for a long time:
"18. If the Courts cannot give direction for their
regularisation of service, in the constrained legal
scenario what other remedies that are available to
these unfortunate employees, who have been
engaged in service for public purpose, without
having any definite future to hold on? These
petitioners cannot be kept on the tenterhooks
of their employment for years together, by
brushing aside and discarding their concerned
yearning for a definite future, with
unresponsive indifference.
19. A welfare State grounded on constitutional
values, cannot come up with apathetic and
callous stand that despite continued
employment of these petitioners for years
together, no semblance of right is available to
them. Such stand by the State is opposed to
constitutional values as enshrined in Article 21 of
the Constitution of India. The Courts of course have
held that equal opportunity must be provided in
public employment and entry through back door
should be discountenanced. When Article 21, being
violated by the State, action towards its servants,
the consideration of the Government must primarily
be focussed on alleviating legitimate grievances of
its employees. Even assuming that the recruitment of
these writ petitioners had not been fully in
consonance with the procedure for appointment in
Government services, the fact remained that these
persons have been consciously appointed by the
Government for implementing public projects and the
work has been extracted from them continuously for
several years. It is therefore, not open to the
Government after a period of time to turn around
and contend that these writ petitioners have no right
at all to seek any kind of guarantee for their future.
20. In the opinion of this Court, continued
employment for several years, even on a
projects meant to serve the State as a whole,
certain rights would definitely accrue to them,
atleast to the extent of making a claim for
formulation of a scheme/towards their
absorption. This Court is quite conscious of the fact
that the Government has been benevolent and had
come up with several schemes in the past and
directed regularisation of services of thousands of
employees over a period of time. Such benevolence
ought to permeate to the lowest levels to take within
its sweep the desperate cry of the petitioners as
well. As in the sublime words of the father of nation,
Mahatma Gandhi, 'A nation's greatness is measured
by how it treats its weakest members'. Merely
because these writ petitioners have been employed
in the projects, the policy makers may not shut their
mind and close their eyes to their precarious plight
having to serve public purpose but left in the lurch
and unprotected, at the end of the day."
7.3. Learned Single Judge of this Court in Dr. Prasana Kumar
Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005,
reported at 2016 (I) ILR-CUT 373, made the following
observation:
"7. In Binan Kumar Mohanty Vrs. Water and Land
Management Institute (WALMI), 2015 (I) OLR 347
referring to Kapila Hingorani Vrs. State of Bihar,
(2003) 6 SCC 1 the apex Court held that the
Government companies/public sector undertakings
being 'States' would be constitutionally liable to
respect life and liberty of all persons in terms of
Article 21 of the Constitution of India. Therefore, if
the petitioner has rendered service for around 20
years, keeping in view the ratio decided in Kopila
Hingorani (supra), this Court issues direction to the
opposite parties to mitigate the hardship of the
employees. Financial stringency is no ground for not
issuing requisite directions when there is violation of
fundamental rights of the petitioner. Allowing a
person to continue for a quite long period of 20 years
of service and exploiting him on the pretext of
financial crunch in violation of Article 21 of the
Constitution of India is sheer arbitrariness of the
authority which is highly condemnable.
8. In Narendra Kumar Ratha and Others Vrs. State of
Odisha and Others, 2015 (I) OLR 197, this Court has
taken into consideration the object of Article 16 of
the Constitution of India to create a constitutional
right to equality of opportunity and employment in
public offices. The word 'employment or
appointment' cover not merely the initial
appointment, but also other attributes like salary,
increments, revision of pay, promotion, gratuity,
leave pension and age of superannuation etc.
Appointment to any post under the State can only be
made in accordance with the provisions and
procedure envisaged under the law and guidelines
governing the field.
9. In Prabodh Verma and Others Vrs. State of U.P. and
Others, (1984) 4 SCC 251, the apex Court held that
Article 16 is an instance of the application of the
general rule of equality laid down in Article 14, with
special reference to the opportunity for appointment
and employment under the Government.
10. Similar view has also been taken by the apex Court
in Km. Neelima Mishra Vrs. Harinder Kaur Paintal
and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402
and E.P. Royappa Vrs. State of Tamil Nadu and
Another, (1974) 4 SCC 3. Clause (1) of Article 16
guarantees equality of opportunity for all citizens in
the matters of employment or appointment to any
office under the State. The very concept of equality
implies recourse to valid classification for preference
in favour of the disadvantaged classes of citizens to
improve their conditions so as to enable them to
raise themselves to positions of equality with the
more fortunate classes of citizens. This view has
also been taken note of by the apex Court in the
case of Indra Sawhney Vrs. Union of India, 1992
Supp. (3) SCC 217 = AIR 1993 SC 477."
7.4. The case of Prasana Kumar Mishra (supra) was carried in
appeal before the Division Bench, giving arise to W.A.
No.4 of 2016, which was dismissed vide Order dated
11.12.2019. Said matter, being carried further to the
Hon'ble Supreme Court of India, vide Order dated
07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the
behest of Biju Patnaik University of Technology, stood
dismissed.
7.5. So far as regularization of services, in a catena of
decisions the Hon'ble Supreme Court of India dealing
illuminatingly with the concept of regularization, in the
case of Narendra Kumar Tiwari Vrs. State of Jharkhand,
(2018) 8 SCC 238, said as follows:
"The purpose and intent of the decision in Umadevi (3)
was therefore twofold, namely, to prevent irregular or
illegal appointments in the future and secondly, to confer
a benefit on those who had been irregularly appointed in
the past. The fact that the State of Jharkhand continued
with the irregular appointments for almost a decade after
the decision in Umadevi (3), (2006) 4 SCC 1 is a clear
indication that it believes that it was all right to continue
with irregular appointments and whenever required,
terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of exploitation
of the employees by not giving them the benefits of
regularisation and by placing the sword of
Damocles over their head. This is precisely what
Umadevi and Kesari sought to avoid."
7.6. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it
has been discussed as follows:
"12. As it appears from the record itself, the case of the
petitioner is squarely covered by the exception
carved out in paragraph 53 of the judgment
rendered in Umadevi (3) mentioned supra. Meaning
thereby, against an existing sanctioned vacancy in
the post of Barber, the petitioner having been
engaged by following due procedure of selection in
the post of Home Guard and continued for a quite
long period, which is not disputed by the opposite
parties-State as per the pleadings available in the
counter affidavit and, as such, the petitioner is still
continuing, the same cannot be treated as an 'illegal
engagement', rather it may be nomenclatured as an
'irregular engagement'.
13. In State of Jammu and Kashmir Vrs. District Bar
Association, Bandipora, MANU/SC/1566/2016 =
(2017) 3 SCC 410, wherein a distinction has been
made with regard to 'irregular' and 'illegal'
engagement, referring to the exception carved out in
Umadevi (3) mentioned supra, in paragraph 12 of
the said judgment it has been stated as follows:
'12. The third aspect of Umadevi (3) which bears
notice is the distinction between an 'irregular'
and 'illegal' appointment. While answering
the question of whether an appointment is
irregular or illegal, the Court would have
to enquire as to whether the appointment
process adopted was tainted by the vice of
non-adherence to an essential prerequisite
or is liable to be faulted on account of the
lack of a fair process of recruitment. There
may be varied circumstances in which an ad
hoc or temporary appointment may be made.
The power of the employer to make a
temporary appointment, if the exigencies
of the situation so demand, cannot be
disputed. The exercise of power however
stands vitiated if it is found that the exercise
undertaken
(a) was not in exigencies of administration; or
(b) where the procedure adopted was
violative of Articles 14 and 16 of the
Constitution; and/or
(c) where the recruitment process was
overridden by the vice of nepotism, bias or
mala fides."
7.7. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC
OnLine Ori 267, it has been observed as follows:
"9. With regard to the regularization of the services of
the petitioners, a mention has been made in
Annexure-4 that the petitioners being irregular
recruits, their regularization is not permissible under
the State Government Rules. But this condition made
in the restructuring order in Annexure-4 so far as it
relates to the petitioners cannot be applicable in
view of the fact that the petitioners have been
appointed against regular vacancies available in the
regular scale of pay admissible to the post. But in
view of their continued service for more than 10
years, their cases are covered by the ratio of the
judgment of the apex Court in Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR
2006 SC 1806, wherein the apex Court has held that
the appointments made against temporary or ad-hoc
basis are not to be regularized. In paragraph 53 of
the said judgment, it is provided that irregular
appointment of duly qualified persons against
sanctioned posts, who have worked for 10
years or more can be considered on merits and
steps to be taken as one time measure to
regularize them. In Paragraph 53 of the said
judgment, the apex Court has held as follows:
***
10. The object behind the exception carved out in this
case was to permit regularization of such
appointments, which are irregular but not illegal,
and to ensure security of employment of those
persons who served the State Government and their
instrumentalities for more than ten years. Similar
question came up for consideration before the apex
Court in Civil Appeal No. 2835 of 2015 (arising out of
SLP (Civil) No. 20169 of 2013 disposed of on
13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015)
8 SCC 265]. In paragraphs 12 and 13, the apex
Court has held as follows:
'12. Elaborating upon the principles laid down in
Umadevi's case (supra) and explaining the
difference between irregular and illegal
appointments in State of Karnataka Vrs. M.L.
Kesari, (2010) 9 SCC 247, this Court held as
under:
'7. It is evident from the above that there is
an exception to the general principles
against "regularisation" enunciated in
Umadevi (3), if the following conditions
are fulfilled:
(i) The employee concerned should
have worked for 10 years or more in
duly sanctioned post without the
benefit or protection of the interim
order of any court or tribunal. In
other words, the State Government
or its instrumentality should have
employed the employee and
continued him in service voluntarily
and continuously for more than ten
years.
(ii) The appointment of such employee
should not be illegal, even if
irregular. Where the appointments
are not made or continued against
sanctioned posts or where the
persons appointed do not possess
the prescribed minimum
qualifications, the appointments will
be considered to be illegal. But
where the person employed
possessed the prescribed
qualifications and was working
against sanctioned posts, but
had been selected without
undergoing the process of open
competitive selection, such
appointments are considered to
be irregular.'
13. Applying the ratio of Umadevi's case, this Court
in Nihal Singh Vrs. State of Punjab, (2013) 14
SCC 65 directed the absorption of the Special
Police Officers in the services of the State of
Punjab holding as under:
'35. Therefore, it is clear that the
existence of the need for creation of
the posts is a relevant factor with
reference to which the executive
government is required to take
rational decision based on relevant
consideration. In our opinion, when
the facts such as the ones obtaining
in the instant case demonstrate that
there is need for the creation of
posts, the failure of the executive
government to apply its mind and
take a decision to create posts or
stop extracting work from persons
such as the appellants herein for
decades together itself would be
arbitrary action (inaction) on the part
of the State.
36. The other factor which the State is
required to keep in mind while creating or
abolishing posts is the financial
implications involved in such a decision.
The creation of posts necessarily means
additional financial burden on the
exchequer of the State. Depending upon
the priorities of the State, the allocation of
the finances is no doubt exclusively
within the domain of the legislature.
However in the instant case creation of
new posts would not create any
additional financial burden to the State as
the various banks at whose disposal the
services of each of the appellants is made
available have agreed to bear the burden.
If absorbing the appellants into the
services of the State and providing
benefits on a par with the police officers
of similar rank employed by the State
results in further financial commitment it
is always open for the State to demand
the banks to meet such additional
burden. Apparently no such demand has
ever been made by the State. The result
is-- the various banks which avail the
services of these appellants enjoy the
supply of cheap labour over a period of
decades. It is also pertinent to notice that
these banks are public sector banks.'***"
7.8. Reference can also be had to Amarendra Kumar
Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR
2014 SC 1716; Subrata Narayan Das Vrs. State of
Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated
12.07.2022.
7.9. In the case of Union of India Vrs. Central Administrative
Tribunal, (2019) 4 SCC 290 the following is the
observation:
"25. The Court noted in the above judgment that if a strict
and literal interpretation was given to the decision in
Umadevi, no employee from the State of Jharkhand
appointed on an irregular basis could ever be
regularized as the State was formed on 15
November 2000 and the cut-off date had been fixed
as 10 April 2006. The intent of the Court was to
grant similarly-placed employees who had put the
requisite years of service as mandated by Umadevi,
the benefit of regularization. The Court thus held
that the Jharkhand Sarkar ke Adhinasth Aniyamit
Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa
Niyamitikaran Niyamawali, 2015 ('the
Regularisation Rules') must be interpreted in a
pragmatic manner and employees of the State who
had completed 10 years of service on the date of
promulgation of the rules, ought to be regularized. In
doing so, the Court ensured that employees in the
State of Jharkhand who had completed the same
years of service as employees from other States, are
granted parity in terms of regularization. The spirit
of non-discrimination and equity runs through the
decisions in Umadevi [(2006) 4 SCC 1], ML Kesari
[(2010) 9 SCC 247] and Narendra Kumar Tiwari
[(2018) 8 SCC 238].
26. In this background, the issue which now arises
before this Court is in regard to the effective direction
which would govern the present case. The High
Court has directed the Union of India to absorb the
casual workmen, if it is not possible at the Institute
in question, then in any other establishment. The
latter part of the direction, as we have already
noted, cannot be sustained. Equally, in our opinion,
the authorities cannot be heard to throw their hands
in despair by submitting that there are no vacancies
and that it had already regularized such of the
persons in the seniority list, who reported for work.
The Tribunal has entered a finding of fact that this
defence is clearly not borne out of the record.
Accordingly, we are of the view that having decided
to implement the decision of the Tribunal, which was
affirmed by the High Court, the Union of India must
follow a rational principle and abide strictly by the
seniority list in proceeding to regularize the workmen
concerned. Accordingly, we direct that the case
for regularization shall be considered strictly
in accordance with the seniority list in
pursuance of the directions which were issued
by the Tribunal and confirmed by the High
Court and such of the persons, who are
available for regularization on the basis of
vacancies existing at present, shall be
considered in accordance with law. The Tribunal
has denied back-wages but has ordered a notional
fixation of pay and allowances. While affirming that
direction, we also direct that persons who have
crossed the age of superannuation will be entitled to
the computation and payment of their retiral dues on
that basis. This exercise shall be carried out within a
period of three months from the receipt of a copy of
the judgment. If it becomes necessary to grant age
relaxation to the concerned workmen, the Appellants
shall do so."
7.10. In Vibhuti Shankar Pandey Vrs. State of Madhya
Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it
has been stated as follows:
"*** The Division Bench rightly held that the learned
Single Judge has not followed the principle of law as
given by this Court in Secretary, State of Karnataka and
Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as
initial appointment must be done by the competent
authority and there must be a sanctioned post on
which the daily rated employee must be working.
***"
7.11. It may be apt to refer to Ranjeet Kumar Das Vrs. State of
Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of
the Judgment runs as follows:
"7. Before delving into the niceties of the order passed
by the tribunal, this Court deems it proper to
examine the claims of the petitioner on the basis of
the factual matrix available on record itself. On the
basis of the pleadings available before this Court, no
doubt the petitioner had approached the tribunal
seeking regularization of his services.
Regularization in service law connotes official
formalisation of an appointment, which was
made on temporary or ad hoc or stop gap or
casual basis or the like, in deviation from the
normal rules of applicable norms of
appointment. Such formalisation makes the
appointment regular. The ordinary meaning of
regularisation is "to make regular" according to The
Shorter Oxford English Dictionary, 3rd Edition, and
according to Black's Law Dictionary, 6th Edition, the
word "regular" means:
'Conformable to law. Steady or uniform in course,
practice, or occurrence; not subject to unexplained or
irrational variation. Usual, customary, normal or
general. Gerald Vrs. American Cas. Co of Reading,
Pa., D.C.N.C., 249 F, Supp. 355, 357. Made
according to rule, duly authorised, formed after
uniform type; built or arranged according to
established plan, law, or principle. Antonym of
"casual" or "occasional," Palle Vrs. Industrial
Commission, 79 Utah 47, 7 P. 2d. 248, 290.'
8. The above being the meaning of "regular", as per the
common parlance given in dictionary, in B.N.
Nagarajan, Vrs. State of Karnataka, AIR 1979 SC
1676 = (1979) 4 SCC 507, the apex Court held that
the effect of such regularization would depend on
the object or purpose for which the regularization is
made or the stage at which it is made. Once
regularized, the procedural infirmities which
attended the appointment are cured. Regularization,
however, does not necessarily connote permanence.
9. The word 'regular' or 'regularisation' do not
connote permanence and cannot be construed
so as to convey an idea of the nature of tenure
of appointments. They are terms calculated to
condone any procedural irregularities and are
meant to cure only such defects as are
attributable to methodology followed in
making the appointments. Relying on the
Judgments of the apex Court in B.N. Nagarajan Vrs.
State of Karnataka, AIR 1979 SC 1676 = (1979) 4
SCC 507, the Constitution Bench of the apex Court in
State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1
has also taken the same view, which has also been
followed by the apex Court in Hindustan Petroleum
Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2
SCC 717 and also in Hindustan Aeronautics Ltd.
Vrs. Dan Bahadur Singh, (2007) 6 SCC 207.
10. Temporary or ad hoc or stop gap or casual basis or
the like appointments are made for various reasons.
An emergent situation might make it necessary to
make such appointments. Since the adoption of the
normal method of regular recruitment might involve
considerable delay regulating in failure to tackle the
emergency. Sometimes such appointments were
to be made because although extra hands are
required to meet the workload, there are no
sanctioned posts against which any regular
recruitment could be made. In fact in the case
of ad hoc or casual appointees, the
appointments, are in the majority of cases, not
against sanctioned posts and the appointments
are made because of the necessity of workload
and the constraints of sanctioning such post
(mainly on financial consideration) on
permanent basis. Needless to say that filling up
vacancies against sanctioned posts by
regularisation is against the constitutional provisions
of equality of opportunity in the matter of public
employment violating Articles 14 and 16 of the
Constitution by not making the offer of employment
to the world at large and allowing all eligible
candidates equality of opportunity to be considered
on merits. If that be so, considering the emergent
necessity of filling up of vacancies and allowing the
petitioner to continue for a quite long period, even if
with one day break in service, cannot be stated to be
a reasonable one, rather, this is an unfair and
unreasonable action of the authority concerned.
***
12. In view of above constitutional philosophy, whether
Courts can remain as mute spectator, is a matter to
be considered to achieve the constitutional goal in
proper perspective. But all these questions had come
up for consideration and decided by the Constitution
Bench of the apex Court in Umadevi (3) mentioned
supra. The factual matrix of the case in Umadevi (3)
arose for consideration from a judgment of
Karnataka High Court. In some of the cases, the
Karnataka High Court rejected the claims of
persons, who had been temporarily engaged as
daily wagers but were continued for more than 10
years in the Commercial Taxes Department of the
State of Karnataka for regularization as permanent
employees and their entitlement to all the benefits of
regular employees. Another set of civil appeals arose
from the order passed by the same High Court on a
writ petition challenging the order of the government
directing cancellation of appointments of all casual
workers/daily rated workers and seeking a further
direction for the regularization of all such daily wage
earners engaged by the State or local bodies. These
claims were rejected by the Division Bench of the
Karnataka High Court on appeal from the judgment
of the learned Single Judge. The reason for the
mater being considered by the Constitution Bench
arose because of two earlier orders of reference
made by a Bench of two-Judge and subsequently by
a Bench of three-Judge- Secretary, State of
Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and
Secretary, State of Karnataka Vrs. Umadevi (2)
(2006) 4 SCC 44, respectively, as they noticed the
conflicting opinions expressed by the earlier 3 Bench
judgments in relation to regularization."
7.12. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C)
No. 19951 of 2020, vide Judgment dated 09.09.2021, a
Single Bench of this Court has made the following
observation:
"8. It is worthwhile to mention here that the Court comes
into picture only to ensure observance of
fundamental rights, and to ensure the rule of law
and to see that the executive acts fairly and gives a
fair ideal to its employees consistent with
requirements of Articles 14 and 16 of the
Constitution, and that the authority should not
exploit its employees nor should it seek to take
advantage of the helplessness and misery of either
the unemployed persons or the employees, as the
case may be. For this very reason, it is held that a
person should not be kept in contractual, temporary
or ad hoc status for a long period. Where a
contractual, temporary or ad hoc appointment is
continued for long, the Court presumes that there is
need of a regular post and accordingly directs for
regularization. While issuing direction for
regularization, the Court must first ascertain
the relevant fact, and must be cognizant of the
several situations and eventualities that may
arise on account of such direction. If for any
reason, a contractual, ad hoc or temporary
employee is continued for a fairly long spell,
the authorities must consider his case for
regularization, provided he is eligible and
qualified according to rules and his service
record is satisfactory and his appointment
does not run counter to the reservation policy
of the State. Even though a casual labourer is
continued for a fairly long spell, say two or three
years, a presumption may arise that there is regular
need for his service. In such a situation, it becomes
obligatory for the concerned authority to examine the
feasibility of his regularization. While doing so, the
authorities ought to adopt a positive approach
coupled with empathy for the person."
7.13. Aforesaid Judgment rendered by the Single Judge of this
Court in Patitapaban Dutta Dash (supra) got the seal of
approval of this Court being carried in appeal bearing
W.A. No. 777 of 2021 before the Division Bench, which
came to be disposed of vide Judgment dated 12.04.2023
[see, (2023) (I) ILR-CUT 906]. While directing the State of
Odisha to implement the direction of the Single Judge
"in letter and spirit", this Court in the ultimate held as
follows:
"44. Going by the above legal position, in the present
cases, at the highest, the respondents could be
considered to be 'irregularly' appointed and
therefore would, even on the touchstone of Umadevi
(supra), be eligible for regularization. The law in M.L.
Kesari (supra), has been reiterated in Amarkant Rai
Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain
Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR
2018 SC 233 and Rajnish Kumar Mishra Vrs. State
of U.P., (2019) 17 SCC 648."
7.14. Noticing the Judgment of the Hon'ble Supreme Court in
the case of Secretary, State of Karnataka and Others Vrs.
Umadevi (3), (2006) 4 SCC 1, in Niranjan Nayak Vrs.
State of Odisha & Others, 2023 (I) OLR 407 the
observation of this Court runs as follows:
"12. Similarly, in the case of Amarendra Kumar
Mahapatra and Others Vrs. State of Odisha and
Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the
Supreme Court was of the opinion that the
appellants were entitled to regularization in
service having regard to the fact that they have
rendered long years of service on ad hoc basis.
13. In the case at hand, it can be ascertained that the
petitioner was appointed against a substantive
vacant post and he had been discharging his duties
in the said post since 1993. The appointment was
made on an ad hoc basis and was extended from
time to time. Since the petitioner was appointed
against substantive vacancy and the post was
sanctioned by higher authorities, the petitioner
should have been extended the benefit of
regulatisation like other similarly situated persons."
7.15. This Court wishes to take notice of recent view of
Hon'ble Supreme Court of India expressed in the case of
Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826,
wherein it has been observed as follows:
"20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize
employees who have rendered long years of
service fulfilling ongoing and necessary
functions of the State or its instrumentalities.
The said judgment sought to prevent backdoor
entries and illegal appointments that circumvent
constitutional requirements. However, where
appointments were not illegal but possibly
"irregular," and where employees had served
continuously against the backdrop of sanctioned
functions for a considerable period, the need for a
fair and humane resolution becomes paramount.
Prolonged, continuous, and unblemished service
performing tasks inherently required on a regular
basis can, over the time, transform what was
initially ad-hoc or temporary into a scenario
demanding fair regularization. In a recent judgment
of this Court in Vinod Kumar Vrs. Union of India,
(2024) 1 SCR 1230, it was held that held that
procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed "temporary" but has
performed the same duties as performed by the
regular employee over a considerable period in
the capacity of the regular employee. The
relevant paras of this judgment have been
reproduced below:
'6. The application of the judgment in Uma Devi
(supra) by the High Court does not fit squarely
with the facts at hand, given the specific
circumstances under which the appellants
were employed and have continued their
service. The reliance on procedural
formalities at the outset cannot be used to
perpetually deny substantive rights that
have accrued over a considerable period
through continuous service. Their promotion
was based on a specific notification for
vacancies and a subsequent circular, followed
by a selection process involving written tests
and interviews, which distinguishes their case
from the appointments through back door entry
as discussed in the case of Uma Devi (supra).
7. The judgment in the case Uma Devi (supra)
also distinguished between "irregular" and
"illegal" appointments underscoring the
importance of considering certain appointments
even if were not made strictly in accordance
with the prescribed Rules and Procedure,
cannot be said to have been made illegally if
they had followed the procedures of regular
appointments such as conduct of written
examinations or interviews as in the present
case. ***"
21. The High Court placed undue emphasis on the initial
label of the appellants' engagements and the
outsourcing decision taken after their dismissal.
Courts must look beyond the surface labels and
consider the realities of employment: continuous,
long-term service, indispensable duties, and absence
of any mala fide or illegalities in their appointments.
In that light, refusing regularization simply
because their original terms did not explicitly
state so, or because an outsourcing policy was
belatedly introduced, would be contrary to
principles of fairness and equity.
22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a
broader systemic issue that adversely affects
workers' rights and job security. In the private
sector, the rise of the gig economy has led to an
increase in precarious employment arrangements,
often characterized by lack of benefits, job security,
and fair treatment. Such practices have been
criticized for exploiting workers and undermining
labour standards. Government institutions,
entrusted with upholding the principles of fairness
and justice, bear an even greater responsibility to
avoid such exploitative employment practices. When
public sector entities engage in misuse of temporary
contracts, it not only mirrors the detrimental trends
observed in the gig economy but also sets a
concerning precedent that can erode public trust in
governmental operations.
23. The International Labour Organization (ILO), of
which India is a founding member, has consistently
advocated for employment stability and the fair
treatment of workers. The ILO's Multinational
Enterprises Declaration [International Labour
Organization-- Tripartite Declaration of Principles
concerning Multinational Enterprises and Social
Policy] encourages companies to provide stable
employment and to observe obligations concerning
employment stability and social security. It
emphasizes that enterprises should assume a
leading role in promoting employment security,
particularly in contexts where job
discontinuation could exacerbate long-term
unemployment.
24. The landmark judgment of the United State in the
case of Vizcaino Vrs. Microsoft Corporation, 97 F.3d
1187 (9th Cir. 1996) serves as a pertinent example
from the private sector, illustrating the consequences
of misclassifying employees to circumvent providing
benefits. In this case, Microsoft classified certain
workers as independent contractors, thereby
denying them employee benefits. The U.S. Court of
Appeals for the Ninth Circuit determined that these
workers were, in fact, common-law employees and
were entitled to the same benefits as regular
employees. The Court noted that large Corporations
have increasingly adopted the practice of hiring
temporary employees or independent contractors as
a means of avoiding payment of employee benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the work
performed, rather than the label assigned to the
worker, should determine employment status and
the corresponding rights and benefits. It highlights
the judiciary's role in rectifying such
misclassifications and ensuring that workers
receive fair treatment.
25. It is a disconcerting reality that temporary
employees, particularly in government institutions,
often face multifaceted forms of exploitation. While
the foundational purpose of temporary contracts
may have been to address short-term or seasonal
needs, they have increasingly become a mechanism
to evade long-term obligations owed to employees.
These practices manifest in several ways:
Misuse of "Temporary" Labels:
Employees engaged for work that is essential,
recurring, and integral to the functioning of an
institution are often labeled as "temporary" or
"contractual," even when their roles mirror those of
regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that
regular employees are entitled to, despite performing
identical tasks.
Arbitrary Termination:
Temporary employees are frequently dismissed
without cause or notice, as seen in the present case.
This practice undermines the principles of natural
justice and subjects workers to a state of constant
insecurity, regardless of the quality or duration of
their service.
Lack of Career Progression:
Temporary employees often find themselves
excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain
stagnant in their roles, creating a systemic disparity
between them and their regular counterparts,
despite their contributions being equally significant.
Using Outsourcing as a Shield:
Institutions increasingly resort to outsourcing roles
performed by temporary employees, effectively
replacing one set of exploited workers with another.
This practice not only perpetuates exploitation but
also demonstrates a deliberate effort to bypass the
obligation to offer regular employment.
Denial of Basic Rights and Benefits:
Temporary employees are often denied fundamental
benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure
spans decades. This lack of social security subjects
them and their families to undue hardship,
especially in cases of illness, retirement, or
unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought
to curtail the practice of backdoor entries and
ensure appointments adhered to constitutional
principles, it is regrettable that its principles
are often misinterpreted or misapplied to deny
legitimate claims of long-serving employees.
This judgment aimed to distinguish between "illegal"
and "irregular" appointments. It categorically held
that employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time measure.
However, the laudable intent of the judgment is
being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even
in cases where their appointments are not illegal,
but merely lack adherence to procedural formalities.
Government departments often cite the judgment in
Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment's explicit acknowledgment
of cases where regularization is appropriate. This
selective application distorts the judgment's spirit
and purpose, effectively weaponizing it against
employees who have rendered indispensable
services over decades.
27. In light of these considerations, in our opinion, it is
imperative for Government departments to lead by
example in providing fair and stable employment.
Engaging workers on a temporary basis for
extended periods, especially when their roles are
integral to the organization's functioning, not only
contravenes international labour standards but also
exposes the organization to legal challenges and
undermines employee morale. By ensuring fair
employment practices, Government institutions
can reduce the burden of unnecessary
litigation, promote job security, and uphold the
principles of justice and fairness that they are
meant to embody. This approach aligns with
international standards and sets a positive
precedent for the private sector to follow, thereby
contributing to the overall betterment of labour
practices in the country."
7.16. In the case of Shripal Vrs. Nagar Nigam, 2025 SCC
OnLine SC 221 referring to observations rendered in
Jaggo (supra), the Hon'ble Supreme Court of India has
been pleased to clarify that:
"16. The High Court did acknowledge the Employer's
inability to justify these abrupt terminations.
Consequently, it ordered re-engagement on daily
wages with some measure of parity in minimum
pay. Regrettably, this only perpetuated
precariousness: the Appellant Workmen were
left in a marginally improved yet still
uncertain status. While the High Court recognized
the importance of their work and hinted at eventual
regularization, it failed to afford them continuity of
service or meaningful back wages commensurate
with the degree of statutory violation evident on
record.
17. In light of these considerations, the Employer's
discontinuation of the Appellant Workmen stands in
violation of the most basic labour law principles.
Once it is established that their services were
terminated without adhering to Sections 6E and 6N
of the U.P. Industrial Disputes Act, 1947, and that
they were engaged in essential, perennial duties,
these workers cannot be relegated to perpetual
uncertainty. While concerns of municipal budget and
compliance with recruitment rules merit
consideration, such concerns do not absolve the
Employer of statutory obligations or negate equitable
entitlements. Indeed, bureaucratic limitations
cannot trump the legitimate rights of workmen
who have served continuously in de facto
regular roles for an extended period.
18. The impugned order of the High Court, to the extent
they confine the Appellant Workmen to future daily-
wage engagement without continuity or meaningful
back wages, is hereby set aside with the following
directions:
I. The discontinuation of the Appellant
Workmen's services, effected without
compliance with Section 6E and Section 6N of
the U.P. Industrial Disputes Act, 1947, is
declared illegal. All orders or communications
terminating their services are quashed. In
consequence, the Appellant Workmen shall be
treated as continuing in service from the date
of their termination, for all purposes, including
seniority and continuity in service.
II. The Respondent Employer shall reinstate the
Appellant Workmen in their respective posts (or
posts akin to the duties they previously
performed) within four weeks from the date of
this judgment. Their entire period of absence
(from the date of termination until actual
reinstatement) shall be counted for continuity of
service and all consequential benefits, such as
seniority and eligibility for promotions, if any.
III. Considering the length of service, the Appellant
Workmen shall be entitled to 50% of the back
wages from the date of their discontinuation
until their actual reinstatement. The
Respondent Employer shall clear the aforesaid
dues within three months from the date of their
reinstatement.
IV. The Respondent Employer is directed to initiate
a fair and transparent process for regularizing
the Appellant Workmen within six months from
the date of reinstatement, duly considering the
fact that they have performed perennial
municipal duties akin to permanent posts. In
assessing regularization, the Employer shall
not impose educational or procedural criteria
retroactively if such requirements were never
applied to the Appellant Workmen or to
similarly situated regular employees in the
past. To the extent that sanctioned vacancies
for such duties exist or are required, the
Respondent Employer shall expedite all
necessary administrative processes to ensure
these longtime employees are not indefinitely
retained on daily wages contrary to statutory
and equitable norms."
7.17. Meticulous reading of Office Order dated 11.05.2011 of
the Puri Municipality transpires that the regularisation
of services of the temporary staff working in Class-IV
category including the petitioners "against the vacant
posts" does not suffer from any infirmity in view of
principles as propounded in the above discussed cases.
The added pointer to this is non-filing of counter
affidavit by the opposite parties.
8. Another aspect which needs to be highlighted in the
present case is non-availability of reason for this Court
to appreciate that there was compelling reason for the
Government of Odisha in Housing and Urban
Development Department to say that the regularisation
of service of petitioners who worked since 1993/1995
with the Puri Municipality as temporary employees is
"unauthorised". Absence of "reason" renders an order
leading to civil consequence inoperative, illogical and
arbitrary. Bald, cryptic and terse order cannot be held to
be tenable in the eye of law.
8.1. Reference be had to following observation of this Court
in Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd., 2017
(II) ILR-CUT 1035:
"9. It is well settled principle of law laid down by the
Apex Court time and again that the authority should
pass reasoned order. Reasons being a necessary
concomitant to passing an order, the authority can
thus discharge its duty in a meaningful manner
either by furnishing the same expressly or by
necessary reference.
***
11. It is well-settled principle of law laid down by the
Apex Court in Mohinder Singh Gill and another Vrs.
The Chief Election Commissioner, New Delhi and
others, AIR 1978 SC 851 that:
'When a statutory functionary makes an order
based on certain grounds, its validity must be
judged by the reasons so mentioned and cannot
be supplemented by fresh reasons in the shape
of affidavit or otherwise. Otherwise an order bad
in the beginning may by the time it comes to Court on
account of a challenge, get validated by additional
grounds later brought out.'
In Commissioner of Police, Bombay Vrs. Gordhandas
Bhanji, AIR 1952 SC 16, the Apex Court held as
follows:
'Public orders publicly made, in exercise of a
statutory authority cannot be construed in the
light of explanations subsequently given by the
officer making the order of what he meant, or
of what was in his mind, or what he intended
to do. Public orders made by public authorities are
meant to have public effect and are intended to affect
the acting and conduct of those to whom they are
addressed and must be construed objectively with
reference to the language used in the order itself.
Orders are not like old wine becoming better as they
grow older.'
Similar view has also been taken in Bhikhubhai
Vithalbhai Patel and others Vrs. State of Gujarat and
another, (2008) 4 SCC 144 as well as in M/s. Shree
Ganesh Construction Vrs. State of Orissa, 2016 (II)
OLR 237 = 2016 (II) ILR-CUT 237.
In the case of State of Punjab Vrs. Bandeep Singh,
(2016) 1 SCC 724 the Apex Court held that the
validity of administrative orders/decisions/
executive instructions/orders/circulars must be
judged by reasons stated in decision or order
itself. Subsequent explanations or reasons cannot
be accepted to sustain decision or order."
8.2. In Broom's Legal Maxims (1939 Edition, Page 97) there
can be found a useful principle, Cessante Ratione Legis
Cessat Ipsa Lex, that is to say,
'Reason is the soul of the law, and when the reason of
any particular law ceases, so does the law itself'.
8.3. In Kranti Associates (P) Ltd. Vrs. Masood Ahmed Khan,
(2010) 9 SCC 496 the legal position has been
summarised as follows1:
"12. The necessity of giving reason by a body or
authority in support of its decision came up for
consideration before this Court in several cases.
Initially this Court recognised a sort of demarcation
between administrative orders and quasi-judicial
orders but with the passage of time the distinction
between the two got blurred and thinned out and
virtually reached a vanishing point in the judgment
of this Court in A.K. Kraipak Vrs. Union of India,
(1969) 2 SCC 262.
***
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
(b) A quasi-judicial Authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to serve
the wider principle of justice that justice must not
only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
1 See also, Nareshbhai Bhagubhai Vrs. Union of India, (2019) 15 SCC 1.
(e) Reasons reassure that discretion has been exercised
by the decision-maker on relevant grounds and by
disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as
observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all countries committed
to rule of law and constitutional governance is in
favour of reasoned decisions based on relevant
facts. This is virtually the lifeblood of judicial
decision-making justifying the principle that reason
is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days
can be as different as the judges and authorities
who deliver them. All these decisions serve one
common purpose which is to demonstrate by reason
that the relevant factors have been objectively
considered. This is important for sustaining the
litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial Authority is not candid
enough about his/her decision-making process then
it is impossible to know whether the person deciding
is faithful to the doctrine of precedent or to principles
of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or 'rubber-
stamp reasons' is not to be equated with a valid
decision-making process.
(m) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but
also makes them subject to broader scrutiny. (See
David Shapiro in Defence of Judicial Candor, (1987)
100 Harvard Law Review 731-37).
(n) Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision-
making, the said requirement is now virtually a
component of human rights and was considered part
of Strasbourg Jurisprudence. See Ruiz Torija Vrs.
Spain, (1994) 19 EHRR 553 EHRR, at 562 para 29
and Anya Vrs. University of Oxford, 2001 EWCA Civ
405 (CA), wherein the Court referred to Article 6 of
the European Convention of Human Rights which
requires, 'adequate and intelligent reasons must be
given for judicial decisions'.
(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and
is virtually a part of 'due process'."
8.4. In Abhiram Caretaking & Expert Services Vrs. Bharat
Sanchar Nigam Limited, 2017 (II) ILR-CUT 1029 the
importance of assigning reason in detail has been
emphasized with the following observations2:
"10. Franz Schubert said:
'Reason is nothing but analysis of belief.'
In Black's Law Dictionary, reason has been defined
as a--
'faculty of the mind by which it distinguishes truth
from falsehood, good from evil, and which enables
the possessor to deduce inferences from facts or
from propositions.'
It means the faculty of rational thought rather than
some abstract relationship between propositions and
by this faculty, it is meant the capacity to make
correct inferences from propositions, to size up facts
for what they are and what they imply, and to
identify the best means to some end, and, in
general, to distinguish what we should believe from
what we merely do believe.
10.1 In Union of India Vrs. Mohan Lal Capoor, AIR 1974
SC 87 it has been held that reasons are the links
between the materials on which certain conclusions
are based and the actual conclusions. They disclose
how the mind is applied to the subject-matter for a
decision whether it is purely administrative or quasi-
judicial and reveal a rational nexus between the
facts considered and conclusions reached. The
reasons assure an inbuilt support to the
conclusion and decision reached. Recording of
2 Giving reasons facilitates the detection of errors of law by the Court. : Santosh
Kumar Paikray Vrs. State of Odisha, 2016 (II) OLR 1131 (Ori).
reasons is also an assurance that the authority
concerned applied its mind to the facts on
record. It is vital for the purpose of showing a
person that he is receiving justice.
Similar view has also been taken in Uma Charan
Vrs. State of Madhya Pradesh, AIR 1981 SC 1915,
Patitapaban Pala Vrs. Orissa Forest Development
Corporation Ltd., 2017 (I) OLR 5; and Banambar
Parida Vrs. Orissa Forest Development Corporation
Limited, 2017 (I) OLR 625.
11. In S.N. Mukherjee Vrs. Union of India, (1990) 4 SCC
594 the Apex Court held that keeping in view the
expanding horizon of principles of natural justice, the
requirement to record reasons can be regarded as
one of the principles of natural justice which governs
exercise of power by administrative authorities.
Except in cases where the requirement has been
dispensed with expressly or by necessary
implication, an administrative authority is required
to record reasons for its decision.
12. In Menaka Gandhi Vrs. Union of India, AIR 1978 SC
597 the Apex Court observed that the reasons, if
disclosed, being open to judicial scrutiny for
ascertaining their nexus with the order, the refusal
to disclose the reasons would equally be open to the
scrutiny of the court; or else, the wholesome power
of a dispassionate judicial examination of executive
orders could, with impunity, be set at naught by an
obdurate determination to suppress the reasons."
8.5. It is stated by Hon'ble Supreme Court in State Bank of
India Vrs. Ajay Kumar Sood, 2022 SCC OnLine SC 1067
that individual judges can indeed have different ways of
writing judgments and continue to have variations in
their styles of expression. The expression of a judge is an
unfolding of the recesses of the mind. However, while
recesses of the mind may be inscrutable, the reasoning
in judgment cannot be. While judges may have their own
style of judgment writing, they must ensure lucidity in
writing across these styles.
8.6. Decision sans reason renders the decision making
process arbitrary3. The Hon'ble Supreme Court of India
in the case of State of Punjab Vrs. Bhag Singh, (2004) 1
SCC 547, observed as follows:
"6. Even in respect of administrative orders, Lord
Denning, M.R. in Breen Vrs. Amalgamated Engg.
Union, (1971) 1 All ER 1148 = (1971) 2 QB 175 =
(1971) 2 WLR 742 (CA) observed:
'The giving of reasons is one of the fundamentals of
good administration.'
In Alexander Machinery (Dudley) Ltd. Vrs. Crabtree,
1974 ICR 120 (NIRC) it was observed:
'Failure to give reasons amounts to denial of justice.
Reasons are live links between the mind of the
decision-taker to the controversy in question and the
decision or conclusion arrived at.'
3 See Steel Authority of India Limited Vrs. Sales Tax Officer, (2008) 10 SCR 655 =
2008 INSC 799.
Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision
reveals the 'inscrutable face of the sphinx', it can, by
its silence, render it virtually impossible for the
courts to perform their appellate function or exercise
the power of judicial review in adjudging the validity
of the decision. Right to reasons is an indispensable
part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the
matter before court. Another rationale is that the
affected party can know why the decision has gone
against him. One of the salutary requirements of
natural justice is spelling out reasons for the order
made, in other words, a speaking-out. The
'inscrutable face of a sphinx' is ordinarily
incongruous with a judicial or quasi-judicial
performance."
8.7. This Court is tempted to say that the Order dated
13.06.2011 of the Government of Odisha directing
cancellation of order of regularisation in service of the
petitioners herein against vacant posts involves serious
civil consequences and casts a slur and creates a barrier
between the employees who have served the Puri
Municipality since 1993/1995 and the Government,
which has with one line of unreasoned order said that
the regularisation is "unauthorised" without indicating
the reasons and circumstances. Keeping in mind the
gravity of the consequences of action of the Government
as well as the Puri Municipality, the authority exercising
such power cannot afford to adopt a casual approach.
Graver is the adverse effect of an action of a functionary
of the Government, heavier is the obligation on the
authority exercising such power to act fairly, reasonably,
in a transparent manner and in conformity with the
principles of natural justice. This duty becomes very
onerous in the background of grave fall out of action of
cancelling the order regularising service.
8.8. Recording of reasons is one of the basic and most
essential requirements for a functionary, if its order has
adverse civil/evil consequences. In the absence of this
minimum basic requisite, an order would become
vulnerable. In Oryx Fisheries (P) Ltd. Vrs. Union of India,
(2010) 13 SCC 427, the Hon'ble Supreme Court has
observed that if the finding of a quasi-judicial (or
administrative) authority has to inspire confidence in the
minds of those subjected to its jurisdiction, such
authority must act with utmost fairness. The principle
that justice must not only be done, but it must
manifestly appear to be done as well is equally
applicable to the quasi-judicial proceeding, if such
proceeding has to inspire confidence in the mind of
those who are subjected to it. In the considered view of
this Court, same principle would apply to the
administrative actions also.
8.9. In CCT Vrs. Shukla & Bros., (2010) 4 SCC 785 it is stated
as follows:
"12. In exercise of the power of judicial review, the
concept of reasoned orders/actions has been
enforced equally by the foreign courts as by the
courts in India. The administrative authority and
tribunals are obliged to give reasons, absence
whereof could render the order liable to judicial
chastisement. Thus, it will not be far from an
absolute principle of law that the courts should
record reasons for their conclusions to enable the
appellate or higher courts to exercise their
jurisdiction appropriately and in accordance with
law. It is the reasoning alone, that can enable a
higher or an appellate court to appreciate the
controversy in issue in its correct perspective and to
hold whether the reasoning recorded by the court
whose order is impugned, is sustainable in law and
whether it has adopted the correct legal approach.
To subserve the purpose of justice delivery system,
therefore, it is essential that the courts should record
reasons for their conclusions, whether disposing of
the case at admission stage or after regular hearing.
13. At the cost of repetition, we may notice, that this
Court has consistently taken the view that recording
of reasons is an essential feature of dispensation of
justice. A litigant who approaches the court
with any grievance in accordance with law is
entitled to know the reasons for grant or
rejection of his prayer. Reasons are the soul of
orders. Non-recording of reasons could lead to
dual infirmities; firstly, it may cause prejudice
to the affected party and secondly, more
particularly, hamper the proper
administration of justice. These principles are not
only applicable to administrative or executive
actions, but they apply with equal force and, in fact,
with a greater degree of precision to judicial
pronouncements. A judgment without reasons
causes prejudice to the person against whom it
is pronounced, as that litigant is unable to
know the ground which weighed with the court
in rejecting his claim and also causes
impediments in his taking adequate and
appropriate grounds before the higher court in
the event of challenge to that judgment. Now,
we may refer to certain judgments of this Court as
well as of the High Courts which have taken this
view.
14. The principle of natural justice has twin ingredients;
firstly, the person who is likely to be adversely
affected by the action of the authorities should be
given notice to show cause thereof and granted an
opportunity of hearing and secondly, the orders so
passed by the authorities should give reason for
arriving at any conclusion showing proper
application of mind. Violation of either of them
could in the given facts and circumstances of
the case, vitiate the order itself. Such rule
being applicable to the administrative
authorities certainly requires that the
judgment of the court should meet with this
requirement with higher degree of satisfaction.
The order of an administrative authority may not
provide reasons like a judgment but the order must
be supported by the reasons of rationality. The
distinction between passing of an order by an
administrative or quasi-judicial authority has
practically extinguished and both are required
to pass reasoned orders.
15. In Siemens Engg. and Mfg. Co. of India Ltd. Vrs.
Union of India, (1976) 2 SCC 981 = AIR 1976 SC
1785 the Supreme Court held as under: (SCC pp.
986-87, para 6)
'6. ... If courts of law are to be replaced by
administrative authorities and tribunals,
as indeed, in some kinds of cases, with
the proliferation of administrative law,
they may have to be so replaced, it is
essential that administrative authorities
and tribunals should accord fair and
proper hearing to the persons sought to be
affected by their orders and give
sufficiently clear and explicit reasons in
support of the orders made by them. Then
alone administrative authorities and
tribunals exercising quasi-judicial
function will be able to justify their
existence and carry credibility with the
people by inspiring confidence in the
adjudicatory process. The rule requiring
reasons to be given in support of an order is,
like the principle of audi alteram partem, a
basic principle of natural justice which must
inform every quasi-judicial process and this
rule must be observed in its proper spirit and
mere pretence of compliance with it would not
satisfy the requirement of law.'
16. In McDermott International Inc. Vrs. Burn Standard
Co. Ltd., (2006) 11 SCC 181 the Supreme Court
clarified the rationality behind providing of reasons
and stated the principle as follows:
'56. ... '... "Reason" is a ground or motive for a
belief or a course of action, a statement in
justification or explanation of belief or action. It
is in this sense that the award must state
reasons for the amount awarded.
The rationale of the requirement of reasons is
that reasons assure that the arbitrator has not
acted capriciously. Reasons reveal the grounds
on which the arbitrator reached the conclusion
which adversely affects the interests of a
party. The contractual stipulation of reasons
means, as held in Poyser and Mills' Arbitration,
In re, (1964) 2 QB 467 = (1963) 2 WLR 1309 =
(1963) 1 All ER 612, 'proper adequate
reasons'. Such reasons shall not only be
intelligible but shall be a reason
connected with the case which the court
can see is proper. Contradictory reasons are
equal to lack of reasons.' ' [Ed.: As stated in
Bachawat's Law of Arbitration and
Conciliation, 4th Edn., at pp. 855-56.]
17. In Gurdial Singh Fijji Vrs. State of Punjab, (1979) 2
SCC 368 while dealing with the matter of selection
of candidates who could be under review, if not
found suitable otherwise, the Court explained the
reasons being a link between the materials on which
certain conclusions are based and the actual
conclusions and held, that where providing reasons
for proposed supersession were essential, then it
could not be held to be a valid reason that the
concerned officer's record was not such as to justify
his selection was not contemplated and thus was
not legal. In this context, the Court held (SCC p. 377,
para 18)
'18. ... 'Reasons' ... 'are the links between the
materials on which certain conclusions are
based and the actual conclusions'. The Court
accordingly held that the mandatory provisions
of Regulation 5(5) were not complied with by
the Selection Committee. That an officer was
'not found suitable' is the conclusion and not a
reason in support of the decision to supersede
him. True, that it is not expected that the
Selection Committee should give anything
approaching the judgment of a Court, but it
must at least state, as briefly as it may, why it
came to the conclusion that the officer
concerned was found to be not suitable for
inclusion in the Select List.'
This principle has been extended to administrative
actions on the premise that it applies with greater
rigour to the judgments of the courts.
18. In State of Maharashtra Vrs. Vithal Rao Pritirao
Chawan, (1981) 4 SCC 129 while remanding the
matter to the High Court for examination of certain
issues raised, this Court observed: (SCC p. 130,
para 2)
'2. ... It would be for the benefit of this Court that
a speaking judgment is given.'
19. In the cases where the courts have not recorded
reasons in the judgment, legality, propriety and
correctness of the orders by the court of competent
jurisdiction are challenged in the absence of proper
discussion. The requirement of recording reasons is
applicable with greater rigour to the judicial
proceedings. The orders of the court must reflect
what weighed with the court in granting or declining
the relief claimed by the applicant. In this regard we
may refer to certain judgments of this Court.
***
21. The principles stated by this Court, as noticed supra,
have been reiterated with approval by a Bench of
this Court in a very recent judgment, in State of
Uttaranchal Vrs. Sunil Kumar Singh Negi, (2008) 11
SCC 205, where the Court noticed the order of the
High Court which is reproduced hereunder:
'8. ... 'I have perused the order dated 27-5-2005
passed by Respondent 2 and I do not find any
illegality in the order so as to interfere under
Articles 226/227 of the Constitution of India.
The writ petition lacks merit and is liable to be
dismissed.' '
and the Court concluded as under: (Sunil Kumar
Singh Negi case, (2008) 11 SCC 205:
'9. In view of the specific stand taken by the
Department in the affidavit which we have
referred to above, the cryptic order passed by
the High Court cannot be sustained. The
absence of reasons has rendered the High
Court order not sustainable. Similar view was
expressed in State of U.P. Vrs. Battan, (2001)
10 SCC 607. About two decades back in State
of Maharashtra Vrs. Vithal Rao Pritirao
Chawan, (1981) 4 SCC 129 the desirability of a
speaking order was highlighted. The
requirement of indicating reasons has
been judicially recognised as imperative.
The view was reiterated in Jawahar Lal Singh
Vrs. Naresh Singh, (1987) 2 SCC 222.
10. In Raj Kishore Jha Vrs. State of Bihar, (2003)
11 SCC 519 this Court has held that reason is
the heartbeat of every conclusion and without
the same, it becomes lifeless.
11. '8. ... Right to reason is an indispensable
part of a sound judicial system; reasons at
least sufficient to indicate an application of
mind to the matter before court. Another
rationale is that the affected party can know
why the decision has gone against him. One of
the salutary requirements of natural justice is
spelling out reasons for the order made;...'
[Ed.: As observed in State of Orissa Vrs.
Dhaniram Luhar, (2004) 5 SCC 568, para 8.]
12. In the light of the factual details particularly
with reference to the stand taken by the
Horticulture Department at length in the writ
petition and in the light of the principles
enunciated by this Court, namely, right to
reason is an indispensable part of sound
judicial system and reflect the application
of mind on the part of the court, we are
satisfied that the impugned order of the High
Court cannot be sustained.'
22. Besides referring to the above well-established
principles, it will also be useful to refer to some text
on the subject. H.W.R. Wade in the book
Administrative Law, 7th Edn., stated that the flavour
of the said reasons is violative of a statutory duty to
waive reasons which are normally mandatory.
Supporting a view that reasons for decision are
essential, it was stated:
'... A right to reasons is therefore an
indispensable part of a sound system of
judicial review. Natural justice may provide the
best rubric for it, since the giving of reasons is
required by the ordinary man's sense of justice. ...
***
... Reasoned decisions are not only vital for the
purpose of showing the citizen that he is
receiving justice: they are also a valuable
discipline for the tribunal itself.'
***
24. Reason is the very life of law. When the reason of a
law once ceases, the law itself generally ceases
(Wharton's Law Lexicon). Such is the significance of
reasoning in any rule of law. Giving reasons furthers
the cause of justice as well as avoids uncertainty.
As a matter of fact it helps in the observance of law
of precedent. Absence of reasons on the contrary
essentially introduces an element of
uncertainty, dissatisfaction and give entirely
different dimensions to the questions of law
raised before the higher/appellate courts. In our
view, the court should provide its own grounds and
reasons for rejecting claim/prayer of a party
whether at the very threshold i.e. at admission stage
or after regular hearing, howsoever concise they
may be.
25. We would reiterate the principle that when reasons
are announced and can be weighed, the public can
have assurance that process of correction is in place
and working. It is the requirement of law that
correction process of judgments should not only
appear to be implemented but also seem to have
been properly implemented. Reasons for an order
would ensure and enhance public confidence
and would provide due satisfaction to the
consumer of justice under our justice
dispensation system. It may not be very correct in
law to say, that there is a qualified duty imposed
upon the courts to record reasons.
***
27. By practice adopted in all courts and by virtue of
judge-made law, the concept of reasoned judgment
has become an indispensable part of basic rule of
law and, in fact, is a mandatory requirement of the
procedural law. Clarity of thoughts leads to clarity of
vision and proper reasoning is the foundation of a
just and fair decision. In Alexander Machinery
(Dudley) Ltd., 1974 ICR 120 (NIRC) there are apt
observations in this regard to say "failure to give
reasons amounts to denial of justice". Reasons are
the real live links to the administration of justice.
With respect we will contribute to this view. There is
a rationale, logic and purpose behind a reasoned
judgment. A reasoned judgment is primarily written
to clarify own thoughts; communicate the reasons for
the decision to the concerned and to provide and
ensure that such reasons can be appropriately
considered by the appellate/higher court. Absence of
reasons thus would lead to frustrate the very object
stated hereinabove."
8.10. In Sri Nandlal Tejmal Kothari Vrs. The Inspecting
Assistant Commissioner of Income Tax, (1997) 3 SCR 575
following proposition of law has been laid down:
"The controversy raised in this appeal is covered by the
judgment of this Court in C.B. Gautam Vrs. Union of India,
(1993) 1 SCC 78 wherein it was held that:
'31. The recording of reasons which lead to the passing
of the order is basically intended to serve a two-fold
purpose:
(1) that the 'party aggrieved' in the proceeding
before (sic. the appropriate authority) acquires
knowledge of the reasons and in a proceeding
before the High Court or the Supreme Court
(Since there is no right of appeal or revision), it
has an opportunity to demonstrate that the
reasons which persuaded the authority to pass
an order adverse to his interest were
erroneous, irrational or irrelevant, and
(2) that the obligation to record reasons and
convey the same to the party concerned
operates as a deterrent against possible
arbitrary action by the quasi-judicial or the
executive authority invested with judicial
powers.' ***"
8.11. With the above perspective of significance of assigning
reason, perusal of Letter dated 13.06.2011 (Annexure-
13) of the Housing and Urban Development Department
forming the foundation for issue of Office Order dated
13.05.2011 by the Office of Puri Municipality keeping in
abeyance the Office Orders regularising the services of
the petitioners and subsequent Office Order dated
13.06.2011 cancelling such Office Orders whereby the
services of the petitioners were regularised inter alia does
not manifest:
i. as to the factual backdrop and circumstances
under which the Office Order Nos.3162, 3165,
3168 and 3171 dated 11.05.2011, whereby services
of temporary employees working in the category
Class-IV were regularised could be said to be
"unauthorised";
ii. there is nothing on record to suggest that the
Housing and Urban Development Department
considered the Finance Department Resolution
dated 15.05.1997 read with Letter dated
15.05.1999 of said Department (Annexure-2),
Letter dated 15.12.2000 of the said Department
(Annexure-3), Puri Municipal Council Meeting held
on 31.03.2008 (Annexure-5), terms of Puri
Municipal Council Bipartite Agreement with Puri
Municipality Employees' Coordination Committee
in the High-Powered Committee Meeting held on
19.02.2010 (Annexure-8), Puri Municipality
General Body Meeting held on 13.09.2010
(Annexure-6) and Puri Municipal Council Meeting
dated 08.04.2011;
iii. the impugned Order(s) does not depict that the
regularisation in services of the petitioner were
made in contravention of the list of temporary
employees awaiting regularisation in the order of
seniority as published vide Notice No.7246, dated
25.11.2010.
8.12. No counter-affidavit has been filed since notice in the
writ petition was issued by Order dated 10.08.2011 and
though the matter stood adjourned from time to time the
opposite parties remained callous to justify their action
by way of filing response.
8.13. Whereas it is discernible from Order dated 11.05.2011
read with Corrigendum Order dated 13.05.2011 that
regularisation in services of the temporary employees
working in the category Class-IV for "more than ten
years" were made "against vacant posts" taking note of
list of seniority vide Puri Municipality Notice dated
25.11.2010, this Court is of the considered view that
such a meticulous exercise by the Puri Municipality
(appointing authority) cannot be said to be
"unauthorised".
8.14. Therefore, cryptic instructions of the Government
contained in the Housing and Urban Development
Department Letter dated 13.06.2011 (Annexure-13),
pursuant to which mechanical Orders dated 13.05.2011
and 13.06.2011 were issued by the Puri Municipality
without ascribing any reason to controvert the decisions
taken/resolutions passed in the Meetings of the Puri
Municipality, cannot be countenanced in law.
Conclusion:
9. Order dated 13.05.2011 and subsequent Order dated
13.06.2011 of the Puri Municipality contrary to its
resolutions as referred to in the foregoing paragraphs,
but based only on the instruction imparted vide Housing
and Urban Development Department Letter dated
13.06.2011, being devoid of reason, is amenable to
judicial review and this Court warrants it expedient to
exercise of power under Article 226/227 of the
Constitution of India.
9.1. The principle of reasoned decision in administrative law
is oft considered as one of the facets of principles of
natural justice, in spirit and in practice. The importance
of reasoned decision is derived not only from its aim of
showing receipt of justice by the citizens but is also
emanated from its existence as a valid discipline for
administrative authorities.
9.2. Giving reasons is an essential element of administration
of justice. A right to reason is, therefore, an
indispensable part of sound system of judicial review.
Reasoned decision is not only for the purpose of showing
that the citizen is receiving justice, but also a valid
discipline for the authority itself. Therefore, statement of
reasons is one of the essentials of justice. [See, State of
West Bengal Vrs. Atul Krishna Shaw, AIR 1990 SC 2205
= 1990 Supp.(1) SCR 91; S.N. Mukherjee Vrs Union of
India, (1990) 4 SCC 594].
9.3. In this context it is pertinent to extract the following
from International Journal of Law Management &
Humanities [ISSN 2581-5369] Volume 4, Issue 3/2021:
"Wade has beautifully summarised the position of
reasoned decisions in the context of principles of natural
justice and has emphasised on their increasing relevance
in the backdrop of judicial review. He says4:
'The principles of natural justice do not, as yet, include
any general rule that reasons should be given for
decisions. Nevertheless, there is a strong case to be made
for the giving of reasons as an essential element of
administrative justice. The need for it has been sharply
exposed by the expanding law of judicial review, now that
so many decisions are liable to be quashed or appealed
against on grounds of improper purpose, irrelevant
considerations and errors of law of various kinds. Unless
the citizen can discover the reasoning behind the
4 H.W.R. Wade & C.F. Forsynth, Administrative Law 436 (Oxford University Press,
2014).
decision, he may be unable to tell whether it is
reviewable or not, and so he may be deprived of the
protection of the law. A right to reasons is therefore
an indispensable part of a sound system of judicial
review. Natural justice may provide the best rubric for it;
since giving of reasons is required by the ordinary man's
sense of justice. It is also a healthy discipline for all those
who exercise power over others.'
***
When the statute under which the administrative body is
functioning imposes a requirement for giving of reasons
for taking a decision, failure to give reasons in such cases
will be fatal to the action taken. Thus, such a provision is
to be treated as a mandatory provision and non-
compliance with such a requirement endangers the
decision given by the authority. The duty to give reasons
for decisions, where it exists, aims at ensuring the
rationality of the decision. It attempts to ensure that the
arguments presented to the decision maker will be taken
into account and be seen to be taken into account. Such a
statutory duty to record reasons is generally enforced by
the courts through a writ of mandamus."
9.4. For lack of availability of reason in the impugned
instruction in the Letter dated 13.06.2011 and Orders
dated 13.05.2011 and 13.06.2011 (Annexures-13, 14
and 15) and rendering no explanation to justify action by
filing response in pursuance of notice issued to the
opposite parties by Order dated 10.08.2011 despite
grant of opportunity on very many occasions by this
Court, there remains no other option with this Court but
to quash the Orders dated 13.05.2011 and 13.06.2011
issued by the Puri Municipality and hold that the
instruction imparted by the Government in Letter
No.13.06.2011 is de hors material on record.
9.5. Puri Municipality has taken decision to regularize the
services of the temporary employees (Class-IV), who
worked for more than 10 years, against vacant posts in
order of seniority and adhered to such decision by issue
of Office Order dated 11.05.2011 regularising the
services of the petitioners. Such action cannot be
considered as if against the exposition of law as
enunciated by the Courts.
10. Another factor which deserves consideration is that in
identical set of fact-situation in respect of Puri
Municipality in the context of cancellation of
regularisation, Division Bench of this Court had the
occasion to consider very same Office Orders being
Nos.3162, 3165 and 3171, dated 11.05.2011-- involved
in the instant case-- in W.P.(C) No.19091 of 2011
(Gobinda Ch. Jee Vrs. Government of Odisha), which
stood disposed of vide Order dated 20.07.2011.
10.1. Pursuant to instruction vide Order dated 29.08.2022,
the Registry of this Court has placed record of W.P.(C)
No.19091 of 2011 (Gobinda Ch. Jee Vrs. Government of
Odisha) along with copy of Order dated 20.07.2011 and
copies of similar Orders dated 20.07.2011 passed in
W.P.(C) No.19092 of 2011 (Surya Narayan Sahoo Vrs.
Government of Odisha); W.P.(C) No.19095 of 2011
(Prasanta Kumar Das Vrs. Government of Odisha); W.P.(C)
No.19096 of 2011 (Laxmidhar Dutta Vrs. Government of
Odisha) for reference.
10.2. On scrutiny, it is ascertained that same set of
documents as are enclosed to the present writ petition
were under annexures in the cases placed for reference.
Minute scrutiny of record relating to Gobinda Ch. Jee
Vrs. Government of Odisha, W.P.(C) No.19091 of 2011 it
is manifest that the petitioner therein has made the
following prayers:
"Your humble petitioner in the circumstances fervently
prays:
1. That the writ petition be admitted for hearing and
opposite parties be directed to show cause as to why
the writ petition shall not be allowed;
2. That if the opposite parties or any of them show no
cause or show insufficient cause, the Hon'ble Court
may be pleased to quash Annexures-7 and 8 holding
the same are bad, illegal and not sustainable in the
eye of law and to declare that the petitioner shall
continue permanently in the post of Driver and is
regularised at least with effect from 13.06.2011 with
a fixed scale of pay on the basis of Annexure-5.
And to pass such other order/orders, direction/directions
may deem fit just and proper in the interest of justice.
And for the said act of kindness, the petitioner as in duty
bound shall remain ever pray."
10.3. Verification of documents at Annexures-7 and 8 sought
to be quashed in Gobinda Ch. Jee Vrs. Government of
Odisha, W.P.(C) No.19091 of 2011 were the Office Order
No.4113, dated 13.06.2011 issued by Puri Municipality
and Letter No.14449/MIS/41/2011/ HUD, dated
13.06.2011 of Housing and Urban Development
Department respectively. In the present case while Letter
No.14449/MIS/41/2011/HUD, dated 13.06.2011 of
Housing and Urban Development Department is placed
at Annexures-13, Office Order No.3239, dated
13.05.2011 is at Annexure-14, which is similar to Office
Order No.4113, dated 13.05.2011, copy of which is
available at Annexure-7 to W.P.(C) No.19091 of 2011.
10.4. In such view of the matter, the Order dated 20.07.2011
passed in W.P.(C) No. 19091 of 2011 and identical
Orders passed on the very same date in W.P.(C)
Nos.19092 of 2011, 19095 of 2011 and 19096 of 2011
may pose relevancy for the present purpose. For better
appreciation, the Order dated 20.07.2011 passed in
W.P.(C) No.19091 of 2011 is reproduced hereunder:
Heard learned counsel for the petitioner and learned
counsel for the State.
In view of the order this Court proposes to pass there is
no necessity of issuing notice to opposite party No.4.
The petitioner, who was working as a Driver in Puri
Municipality was regularized by Office Order No.3162
dated 11.05.2011. Thirteen Tax Collectors, two
Conservancy Jamadar and one Carpenter were
regularized by Puri Municipality vide Office Order
No.3168 dated 11.05.2011. In Annexure-8 the
Government of Orissa in Housing and Urban
Development Department issued a letter to opposite
party No.4 to cancel the regularization of the
aforesaid sixteen employees, who had been
regularized by office order No 3168 dated
11.05.2011 of Puri Municipality. In compliance of
the said direction, the impugned order under
Annexure-7 has been passed. Though the Department
directed the Municipality to cancel the regularizason of the
employees, whose services were regularized vide Office
Order No.3168 dated 11.05.2011, with reference to the
said letter under Anenxure-8 the regularization made in
respect of employees in Office Order Nos. 3162, 3165 and
3171 dated 11.05.2011 have also been cancelled. In
Annexure-8 the Department never asked for cancellation
of the regularization of employees who had been
regularized by Office Order Nos.3162, 3165 and 3171
dated 11.05.2011. Therefore, there was no occasion
on the part of Puri Municipality to cancel the
regularization of the employees covered under the
aforesaid three Office Orders on the basis of the
Letter under Annexure-8.
We, therefore, direct opposite party No.4 to find out as to
whether there is any request or direction from the Housing
and Urban Development Department for cancellation of
regularization of employees, who had been regularized by
Puri Municipality under Office Order Nos. 3152, 3165 and
3171 dated 11.05.2011. If there is no such direction
from the Department of Housing and Urban
Development, action should be taken on the basis of
Annexure-8 only in respect of employees, who had
been regularized under Office Order No.3168 dated
11.5.2011 and should not be extended to other
employees. Opposite party No.4 (Executive Officer, Puri
Municipality) is, therefore, directed to take a decision in
this regard within a period of one month from the date of
communication of this order and till such a decision is
taken the order under Annexure-7 so far as it relates to
the petitioner shall not be given effect to.
The Writ Petition is disposed of.
Requisites along with a copy of this Writ Petition be filed
by 22.7.2011 for communication of this order to opposite
party No.4."
10.5. Nothing is brought on record by Puri Municipality to
demonstrate that any adverse orders have been passed
against the petitioner(s) in W.P.(C) No.19091 of 2011 in
pursuance of direction contained in Order dated
20.07.2021 and other analogous cases referred to supra.
It is also argued by none of the opposite parties that the
said Order has been varied, set aside or reversed.
Therefore, it is construed that the Order dated
11.05.2011 passed by Puri Municipality has attained
finality.
10.6. To buttress his submission on discriminatory treatment
in regularisation of service, Sri Hrudananda Mohapatra,
learned Advocate referred to paragraphs 4, 8, 9, 12 and
13 of Ravi Verma and others Vrs. Union of India and
others, 2018 SCC OnLine SC 3860 wherein the following
are the observations of Hon'ble Supreme Court:
"4. The appellants were appointed as casual employees
in the Income Tax Department in the year 1993-1994
since then they were working continuously. On 30th
January 2004 with respect to other similarly
situated employees, temporary status was granted.
The respondent No. 4 on 30th December 2004
recommended the case of the appellants for
temporary status/regularization. Again it was
recommended for regularization on 14.06.2005. In
the meantime, the decision in the State of Karnataka
Vrs. Uma Devi, (2006) 4 SCC 1 was pronounced by
this Court, the same provided that the employees
who had rendered services continuously for ten
years without the cover of the court's order be
regularized as the one-time measure.
8. Again on 07.11.2007/19.11.2007 information was
forwarded along with a recommendation for the
regularization of services of the appellant and again
on 01.01.2008 and 31.01.2008 also,
recommendations were made. However services
were not regularized, through Chief Commissioner,
Income Tax, U.P. West, Ghaziabad regularized
similarly placed 88 casual employees on
30.01.2009. The Chief Commissioner, Income Tax
Orissa, Bhubaneshwar also regularized similarly
situated eight employees on 12.03.2009; orders of
regularization have been placed on record
respectively as Annexures P1 and P2. However,
similar treatment was not accorded to the
appellants.
9. On 01.06.2009 appellants 1, 2 and 3 were
sanctioned minimum of regular pay scale of Group D
employees with Dearness Allowance in accordance
with DoPT Circular dated 31.05.2004 and in terms
of the orders of CCIT dated 07.11.2007 and
06.12.2007 on conferral temporary of status on the
employees. On 22.09.2009, Chief Commissioner,
Income Tax, Kolkata also regularized 111 similarly
situated casual employees and 17 employees on
15.10.1990 and Chief Commissioner, Income Tax,
Lucknow regularized 59 similarly situated casual
employees on 22.01.2010. There was further
regularization of 35 employees of the office of Chief
Commissioner, Income Tax, Patna on 20.08.2010.
However, the claim of the appellants was
rejected by respondent No. 3 though they had
served continuously for more than ten years
and fulfill the requisite criteria for the purpose
of regularization in terms of the circulars of
DoPT and the decision rendered by this Court
in Uma Devi (supra). The appellants have also
given the vacancy position.
12. Having heard learned counsel for the parties at
length, we are of the considered opinion that
appointments were only irregular one, this Court
observed in para 53 Uma Devi (supra) thus:
'53. ***'
13. In view of the aforesaid decision, the circulars and
regularization of the similarly situated
employees at other places and various
recommendation that were made the services
of the appellants ought to have been
regularized in the year 2006; discriminatory
treatment has been meted out to them. As per
the decision of Uma Devi (supra), they were
entitled to regularization of services; they did
not serve under the cover of court's order.
Illegality has been committed by not directing
regularization of services."
10.7. Reference has also been made to paragraphs 4 and 8 of
Raman Kumar and others Vrs. Union of India and others,
2023 SCC OnLine SC 1018, wherein the following are the
observations:
"4. The matter arises out of regularization of the
employees. The Chief Commissioner of Income Tax in
his report dated 14.02.2013 found that, in the
exercise conducted in pursuance of the judgment of
this Court in the case of Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1, though 65
employees were found to be entitled for
regularization, only 35 employees were regularized.
This was done since only 35 vacancies were
available.
8. Indisputably, the appellants herein have completed
service of more than ten years. Even this Court in
the case of Ravi Verma Vrs. Union of India (Civil
Appeal No(s).2795-2796 of 2018) decided on
13.03.2018 found that the act of regularizing the
services of some employees and not regularizing the
services of the others is discriminatory and violative
of Article 14 of the Constitution of India."
10.8. In the case of Harbanslal Sahnia Vrs. Indian Oil
Corporation Ltd., (2003) 2 SCC 107, the Hon'ble Supreme
Court observed as follows:
"7. So far as the view taken by the High Court that the
remedy by way of recourse to arbitration clause was
available to the appellants and therefore the writ
petition filed by the appellants was liable to be
dismissed is concerned, suffice it to observe that the
rule of exclusion of writ jurisdiction by availability of
an alternative remedy is a rule of discretion and not
one of compulsion. In an appropriate case, in spite of
availability of the alternative remedy, the High Court
may still exercise its writ jurisdiction in at least three
contingencies:
(i) where the writ petition seeks enforcement of
any of the fundamental rights;
(ii) where there is failure of principles of natural
justice; or
(iii) where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. (See Whirlpool Corpn. Vrs.
Registrar of Trade Marks, (1998) 8 SCC 1).
The present case attracts applicability of the first
two contingencies. Moreover, as noted, the
petitioners' dealership, which is their bread
and butter, came to be terminated for an
irrelevant and non-existent cause. In such
circumstances, we feel that the appellants should
have been allowed relief by the High Court itself
instead of driving them to the need of initiating
arbitration proceedings."
10.9. In such view of the matter, this Court is of the
considered view that the present case warrants
interference.
11. For the reasons stated on the facts narrated herein
above and keeping abreast of legal position as
propounded by the Courts referred to and relied on
supra, this Court is inclined to exercise power under
Article 226 to issue writ of certiorari by quashing the
instruction contained in Housing and Urban
Development Department Letter No.14449/MIS-
41/2011/HUD, dated 13.06.2011 (Annexure-13), and
also the Puri Municipality Office Order dated 13.05.2011
(Annexure-14) and the Puri Municipality Office Order
dated 13.06.2011 (Annexure-15) for non-assigning
reason.
11.1. This Court also makes the observation that such
instruction of the Government and orders of Puri
Municipality based on such instruction run counter to
the settled legal position as discussed in the foregoing
paragraphs.
11.2. As a consequence thereof, the Order No.3171, dated
11.05.2011 (Annexure-11) read with Corrigendum dated
13.05.2011 (Annexure-12) regularising the services of
the petitioners is liable to be given effect to.
11.3. The opposite parties are liable to be issued with writ of
mandamus and accordingly, the opposite parties are
directed to work out the entitlement of the petitioners
within a period of three months from today and grant all
consequential service and financial benefits to the
petitioners.
12. In fine, the writ petition stands disposed of, but in the
circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Mar-2025 16:55:31
High Court of Orissa, Cuttack
The 24th March, 2025//Aswini/Laxmikant/Suchitra
