Orissa High Court
Sabitri Mohanty vs State Of Odisha & Others .... Opposite ... on 12 May, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C ) No.1875 of 2023
Sabitri Mohanty .... Petitioner
Mr. G.N. Mishra, Adv.
-versus-
State of Odisha & Others .... Opposite Parties
Mr. S.K. Jee, AGA
Mr. A. Mishra, Adv.
(for O.P. Nos.5 & 6)
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
12.05.2025
Order No.
9. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard learned counsel appearing for the parties.
3. Pursuant to order dt.07.04.2025, learned Addl.
Standing Counsel produced the inquiry report prepared by
the Collector and District Magistrate, Khurda, so
communicated vide letter dt.06.05.2025. The same be kept
on record.
4. The present writ petition has been filed with the
following prayer:
" The Petitioner, therefore, prayed that the Hon'ble Court
would graciously be pleased to issue Rule-NISI calling
upon the opposite parties to show cause as to why the
Advertisement dated 08.12.2022 for filling up of one
Female Attendant Post in Shriharsa Mishra Memorial Sisu
// 2 //
Vidyalaya, School under Annexure-7 should not be
quashed;
And as to why the State Opposite Parties should
not be directed to approve the post of the Petitioner as
Female Attendant and release salary to the petitioner
forthwith and further the State Opposite Parties be
directed to calculate the arrear salary and pay the same
to the Petitioner forthwith;
And if the opposite parties fail to show cause or
show insufficient cause the said Rule be made absolute;
And/or pass any other appropriate writ/writs,
order/orders the Hon'ble Court deem fit and proper in the
facts and circumstances of the case;
And for this act of kindness the Petitioner shall as
in duty bound ever pray.
4.1. It is contended that Petitioner was engaged as an
Attendant in Shriharsa Mishra Memorial Sisu Vidyalaya,
School for the Deaf, Blind & Mentally Retarded,
Bhubaneswar vide order of engagement issued on
18.08.1995 under Annexure-1.
4.2. It is contended that while so continuing, basing on
the decision taken in the proceeding of the meeting held on
12.05.1999, a request was made by the District Social
Welfare Officer, Khurda to Opp. Party No.1 for selection of
staff in the institution in question i.e. Shriharsa Mishra
Memorial Sisu Vidyalaya, School for the Deaf, Blind &
Mentally Retarded, Bhubaneswar.
4.3. It is contended that in the proceeding dt.12.05.1999,
a request was made to approve two (2) further posts of
Attendant over and above four (4) posts of Attendant
already approved by the Government. It is contended that
on the face of such request made by the District Social
// 3 //
Welfare Officer vide his letter dt.23.02.2012 under
Annexure-2, no step was taken to approve two (2) posts of
Attendant over and above the four (4) posts already
approved by the Government. However, Petitioner was
allowed to continue as an Attendant in terms of the order of
engagement issued on 18.08.1995 under Annexure-1.
4.4. It is also contended that vide letter dt.07.11.2017,
claim of the Petitioner though was forwarded for
regularization of her services in the vacant post of Female
Attendant to District Social Security Officer-Opp. Party
No.4, but no action was taken on the same. It is further
contended that Government-Opp. Party No.1 vide letter
dt.14.12.2022 though requested Opp. Party No.4 to furnish
various information with regard to the claim of the
Petitioner for approval of her services as against the post of
Female Attendant, but no action was also taken on the
same. It is also contended that vide letter dt.11.10.2021
under Annexure-6, Opp. Party No.3 moved the Government
for approval of the services of the Petitioner as against the
post of Female Attendant which is lying vacant as per the
yardstick.
4.5. It is contended that on the face of such
communications being made at different point of time,
taking into account the continuance of the Petitioner w.e.f
18.08.1995, no action was taken to regularize her services.
However, since in the meantime an advertisement was
issued on 08.12.2022 under Annexure-7 to fill up two (2)
vacant post of Attendant in the school in question,
// 4 //
challenging the same, the present Writ Petition was filed
inter alia with the prayer as indicated hereinabove.
4.6. It is contended that this Court while issuing notice of
the matter vide order dt.25.01.2023 passed an interim
order to the following effect.
xxx xxx xxx
"It is directed that the process of selection
pursuant to the advertisement dated
08.12.2022 under Annexure-7 so far as
Attendant (Female) post is concerned, may
continue, but no final decision shall be taken
till next date."
4.7. It is contended that in terms of the interim order so
passed, no action was taken to fill up the 2 (two) posts of
Attendant in terms of the impugned advertisement
dt.08.12.2022 and Petitioner is continuing as Attendant
(Female) in the school in question as on date.
4.8. It is contended that since admittedly two posts of
Attendant (Female) are lying vacant as against the 4 (four)
sanctioned post, there is no difficulty in regularizing the
services of the Petitioner in the said post instead of going
for fresh recruitment with issuance of impugned
advertisement under Annexure-7. It is accordingly
contended that appropriate direction be issued to Opp.
Party No.1 to regularize of services of the Petitioner against
one of the vacant post of Female Attendant.
5. Learned Addl. Govt. Advocate on the other hand
basing on the counter affidavit when contended that the
// 5 //
Petitioner is not in service in the school, this Court
considering such stand of the Opp. Party passed the
following order on 07.04.2025.
"1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel for the parties.
3. Pursuant to order dated 11.03.2025, learned
Addl. Standing Counsel produced the instruction
provided by the office of the Collector vide letter
dated 06.03.2025. The same be kept in record.
4. Learned Addl. Standing Counsel contended that
the Principal of the School on being asked vide letter
dated 01.02.2025, has intimated that the petitioner is
not in service since 2001.
5. Learned counsel for the petitioner placing
reliance on the documents available under
Annexure-3, 4 and 6, on the other hand contended
that the petitioner is very well continuing in service
and the Principal has made wrong intimation that
petitioner is not in service since 2001.
6. This Court taking into account the documents
available under Annexures-2, 3 and 6 and the
instruction provided by the learned Addl. Standing
Counsel, is of the view that the matter requires an
enquiry by O.P. No.3. This Court accordingly
directs O.P. No.3 to cause an enquiry and submit a
report as to whether petitioner is continuing in
service at present or not. Such a report be submitted
to this Court before the next date.
7. As requested by learned ASC, list this matter in
the week commencing 05.05.2025.
8. Interim order passed earlier shall continue till the
next date."
5. Pursuant to the said order, an inquiry was conducted
by Opp. Party No.3 and basing on the report so produced in
Court today, it is contended that Petitioner is continuing
// 6 //
w.e.f 18.08.1995, but on voluntary basis. However, it is
contended that since the school management intimated
that the Petitioner is not in service from the date of taken
over of the school by the District Administration, there is no
question of regularization of services or release of salary.
Stand taken in Para 14 and 15 of the counter affidavit so
filed by Opp. Party Nos. 3 & 4 reads as follows:
"That the allegations made in Para-9 of the writ
petition are not fully correct. It is not correct
that the Collector & District Magistrate, Khurda
vide letter dated 11.10.2021 vide Annexure-6 to
the writ petition requested the Govt. for
approval of the post of the petitioner. The
District Social Security Officer, Khurda has
requested the Govt. for approved of the post of
the petitioner vide Annexure-6 to the writ
petition. Xerox copy of the legible copy of Letter
No.3768, dated 11.10.2021, which has been filed
as Annexure-6 to the writ petition is filed
herewith as Annexure-K/4. But, due to the non-
approval of the said post, the same has not been
considered. But the Govt. has asked to submit
the information from the District Social Security
Officer, Khurda to consider the case of the
petitioner vide Lettere No.9394, dated
14.12.2022 (Annexure-5 Series, Page-20) of
Under Secretary to Govt., SSEPD Department.
In this regard the School Management has
informed to submit the information vide Letter
No.218/SMS, dated 18.12.2022. But the School
Management has informed that the petitioner
has not in service from date of taken over of the
School by the District Administration. Hence,
release of her salary from date of her joining
could not be considered. After receipt of Letter
No.218/SMS, dated 18.12.2022, the District
Social Security Officer, Khurda vide Letter No.
6772/SS, dated 19.12.2022 informed the detailed
information on the engagement of the petitioner
to the Under Secretary to Govt., SSEPD
// 7 //
Department. Xerox copies of Letter
No.218/SMS, dated 18.12.2022 and Letter
No.6772/SS, dated 19.12.2022 are filed herewith
as Annexure-L/4 and Annexure-M/4
respectively.
15. That in reply to the averments made in Para-
10 of the writ petition, it is humbly submitted
that as the petitioner is no longer in service,
advertisement under Annexure-7 to the writ
petition has been made for of the post of Female
Attendant, which is not illegal and arbitrary as
alleged."
7. Having heard learned counsel appearing for the
parties and considering the submission made, this Court
finds that Petitioner was engaged as an Attendant in
Shriharsa Mishra Memorial Sisu Vidyalaya, School for the
Deaf, Blind & Mentally Retarded, Bhubaneswar vide order
of appointment issued on 18.08.1995 under Annexure-1.
While so continuing in the proceeding of the meeting held
on 12.05.1999, the Committee decided to move the
Government to create and approve another two (2) posts of
Attendant over and above the four (4) posts already
approved by the Government.
7.1. The said decision of the Committee was forwarded to
Opp. Party No.1 vide letter dt.23.02.2012 under Anneuxre-
2. But subsequently vide letter dt.07.11.2017 under
Annexure-3 and letter dt.11.10.2021 under Annexure-6,
Government was moved to approve the services of the
Petitioner as against the vacant post of Attendant (Female)
as out of the four (4) approved posts of Attendant, one (1)
post fell vacant during continuance of the Petitioner.
// 8 //
7.2. On the face of such request made vide letter
dt.07.11.2017 under Annexure-3 as well as letter
dt.11.10.2021 under Annexure-6, no action was taken by
O.P No.1 to consider the Petitioner's grievance. However, in
terms of the advertisement issued on 8.12.2022, since
2(two) posts of Attendant has not yet been filled up, taking
into account the report submitted by the Collector that the
Petitioner is discharging her duty in the school in question
as on date w.e.f. 18.08.1995, this Court has placed reliance
on the decision of Hon'ble Apex Court in the case of State
of Karnatak Vs. Umadevi & Others, Nihal Singh &
Others Vs. State of Punjab & Others and Amarkant Rai
Vs. State of Bihar & Others. Hon'ble Apex Court in the
said decision has held as follows:
1. State of Karnatak Vs. Umadevi &
Others,(AIR 2006 SC 1806).
1. Nihal Singh & Others Vs. State of Punjab
& Others,(2013(14)SCC 65).
3. Amarkant Rai Vrs. State of Bihar
& Others, (2015 SCC, Online SC 214).
In the case of Uma Devi, Hon'ble Apex Court in Para-
44 has held as follows:-
"44. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
(supra), R.N. Nanjundappa (supra) and B.N. Nagarajan
(Supra), and referred to in paragraph-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 courts or of tribunals. The question of
// 9 //
regularization 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 regularize 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
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 wages 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 subjudice,
need not be reopened based on this judgement, but
there should be no further by passing of the
constitutional requirement and regularizing or making
permanent, those not duly appointed as per the
constitutional scheme."
In the case of Nihal Singh,Hon'ble Apex Court
in Para 35, 36 and 38 of the decision has held as
follows:
35. Therefore, it is clear that the existence of the
need for creation of the posts is a relevant factor
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
// 10 //
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 at 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. We are of
the opinion that neither the Government of Punjab
nor these public sector banks can continue such a
practice consistent with their obligation to function in
accordance with the Constitution. Umadevi's
judgment cannot become a licence for exploitation by
the State and its instrumentalities.
38. We direct the State of Punjab to regularise the
services of the appellants by creating necessary
posts within a period of three months from today.
Upon such regularisation, the appellants would be
entitled to all the benefits of services attached to the
post which are similar in nature already in the cadre
of the police services of the State. We are of the
opinion that the appellants are entitled to the costs
throughout. In the circumstances, we quantify the
costs to Rs.10,000/- to be paid to each of the
appellants."
In the case of Amarkanta Rai, Hon'ble Apex
Court in paragraph-4,11,12,13,14 & 15 has held
as follows:
4. The learned counsel for the appellant
contended that the appellant served on the post for 29
years on daily wages and even as per the decision in
para 53 in Umadevi (3) case [(2006) 4 SCC 1 : 2006
SCC (L&S) 753] , irregular appointment of employees
// 11 //
who have worked for more than 10 years should be
considered on merits. It was contended that the
appellant has been working in a sanctioned post and
his appointment was not illegal but in the facts and
circumstances of the case, his appointment could only
be irregular appointment entitling him for
regularisation. It was submitted that the three-
member Committee as well as the High Court did not
keep in view that the case of the appellant was
recommended for regularisation.
11. Elaborating upon the principles laid down
in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S)
753] and explaining the difference between irregular
and illegal appointments in State of Karnataka v. M.L.
Kesari [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] ,
this Court held as under: (M.L. Kesari case [(2010) 9
SCC 247 : (2010) 2 SCC (L&S) 826] , SCC p. 250, para
7)
"7. It is evident from the above that there is an
exception to the general principles against
'regularisation' enunciated in Umadevi (3) [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] , 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."
12. Applying the ratio of Umadevi (3) case [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] , this Court in Nihal
Singh v. State of Punjab [(2013) 14 SCC 65 : (2013) 3
// 12 //
SCC (L&S) 85] directed the absorption of the Special
Police Officers in the services of the State of Punjab
holding as under: (Nihal Singh case [(2013) 14 SCC 65
: (2013) 3 SCC (L&S) 85] , SCC pp. 79-80, paras 35-
36)
"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."
13. In our view, the exception carved out in para 53
of Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753]
is applicable to the facts of the present case. There is
no material placed on record by the respondents that
// 13 //
the appellant has been lacking any qualification or
bore any blemish record during his employment for
over two decades. It is pertinent to note that services
of similarly situated persons on daily wages for
regularisation viz. one Yatindra Kumar Mishra who
was appointed on daily wages on the post of clerk
was regularised w.e.f. 1987. The appellant although
initially working against unsanctioned post, the
appellant was working continuously since 3-1-2002
against sanctioned post. Since there is no material
placed on record regarding the details whether any
other night guard was appointed against the
sanctioned post, in the facts and circumstances of the
case, we are inclined to award monetary benefits to
be paid from 1-1-2010.
14. Considering the facts and circumstances of the
case that the appellant has served the University for
more than 29 years on the post of night guard and
that he has served the College on daily wages, in the
interest of justice, the authorities are directed to
regularise the services of the appellant retrospectively
w.e.f. 3-1-2002 (the date on which he rejoined the
post as per the direction of the Registrar).
15. The impugned order of the High Court
in Amarkant Rai v. State of Bihar [ LPA No. 1312 of
2012, order dated 20-2-2013 (Pat), 2013 SCC OnLine
Pat 775] dated 20-2-2013 is set aside and this appeal
is allowed. The authorities are directed to notionally
regularise the services of the appellant retrospectively
w.e.f. 3-1-2002, or the date on which the post became
vacant whichever is later and without monetary
benefit for the above period. However, the appellant
shall be entitled to monetary benefits from 1-1-2010.
The period from 3-1-2002 shall be taken for continuity
of service and pensionary benefits.
In view of the aforesaid decisions, this Court directs
Opp. Party No.1 to regularize the services of the Petitioner
as against one (1) post of Attendant (Female) in the school
in question. This Court directs Opp. Party No.1 to pass an
appropriate order by regularizing the services of the
// 14 //
Petitioner within a period of six (6) weeks from the date of
receipt of this order.
7.2. Till a decision is taken as directed, interim order
passed on 25.01.2023 will continue.
7.3. With the aforesaid observation and direction, the Writ
Petition accordingly stands disposed of.
(Biraja Prasanna Satapathy)
Judge
sangita
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 24-May-2025 13:13:17
