[Cites 7, Cited by 0]
Orissa High Court
A. Arun Kumar & Ors vs State Of Odisha & Ors. .... Opposite ... on 28 November, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.12548 of 2022
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
A. Arun Kumar & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. K.P. Mishra, Sr. Advocate
along with
Mr. A. Mishra, Advocate
For Opp. Parties : Mr. S.P. Das
Addl. Standing Counsel
Mr. D. Nayak, Advocate
(Opp. Party Nos. 3 to 5)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------------
Date of Hearing: 28.11.2025 and Date of Judgment: 28.11.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. K.P. Mishra, learned Sr. Counsel appearing for the
Petitioners, Mr. S.P. Das, learned Addl. Standing Counsel
appearing for the State-Opp. Parties and Mr. D. Nayak, learned
counsel appearing for Opp. Party Nos. 3 to 5.
// 2 //
3. The present writ petition has bene filed inter alia challenging
order dtd.24.12.2021 so passed by Opp. Party No. 3, wherein claim
of the Petitioners to get the benefit of regularization taking into
account their long continuance was rejected.
4. It is the case of the Petitioners that they were all engaged in the
year 1992 in the then Cuttack Municipality. While so continuing
when Petitioners were illegally disengaged in the year 1995,
Petitioners challenging such action of the Municipality approached
this Court in OJC No. 9113 of 1995. This Court when vide order
dtd.19.12.1995, passed an interim order of status quo to be
maintained, Petitioners were suo moto reengaged in their work on
23.12.1995 vide office order of the same date under Annexure-2.
4.1. Learned Sr. Counsel appearing for the Petitioners contended
that after being so reengaged vide office order dtd.23.12.1995,
Petitioners were allowed to continue as before. Taking into such
long continuance of the Petitioners w.e.f. 1992 and even after the
reengagement vide order dtd.23.12.1995 under Annexure-2,
Petitioners when were not absorbed in the regular establishment,
they approached this Court with a prayer to take their services to be
counted w.e.f. the initial date of engagement in 1992 and for
// 3 //
correction of the gradation list so issued by the Cuttack Municipal
Corporation.
4.2. When the same was not considered, Petitioners once again
approached this Court in W.P.(C) No. 13232 of 2010. This Court
vide order dtd03.03.2015 under Annexure-3 directed Opp. Party
No. 3 to consider the grievance of the Petitioners by giving due
opportunity of hearing. But such claim of the Petitioners was
rejected vide order dtd.04.09.2015 under Annexure-4 and in the
said order it was held that position of the Petitioners in the
gradation list by showing their engagement of the year 1995 is
justified.
4.3. It is contended that thereafter, Petitioners when were not
regularized in their services, even if their engagement was taken of
the year 1995, they approached this Court once again by filing
W.P.(C) No. 27758 of 2021. This Court vide order dtd.23.09.2021
under Annexure-6, when directed the Cuttack Municipal
Corporation to consider their claim, the same has been rejected vide
the impugned order dt.24.12.2021 under Annexure-7, inter alia on
the ground that W.P.(C) No. 9113 of 1995 so filed by them
// 4 //
challenging their disengagement, was dismissed by this Court vide
order dtd.22.11.2021.
4.4. Learned Sr. Counsel appearing for the Petitioners contended
that W.P.(C) No. 9113 of 1995 was filed challenging the order of
disengagement issued by the then Municipality. However, this
Court when passed an interim order on 19.10.1995, Petitioners were
suo moto reengaged by the Municipality vide order dt.23.12.1995
under Annexure-2 and were allowed to continue. Accordingly,
prayer made in the said writ petition became infructuous after their
reengagement suo moto by the Municipality. It is accordingly
contended that the ground taken in the impugned order that W.P.(C)
No. 9113 of 1995 since was dismissed by this Court vide order
dtd.22.11.2021. Petitioners' order of disengagement stands revived
and Petitioners accordingly are not eligible to get the benefit of
regularization is completely misconceived.
4.5. It is also contended that in view of the recent decisions of the
Hon'ble Apex Court in the case of Jaggo vs. Union of India &
Ors., 2024 SCC OnLine SC 3826 and Shripal & Anr. vs. Nagar
Nigam, Ghaziabad, 2025 SCC OnLine SC 221 as well as Dharam
Singh & Ors. vs. State of U.P. & Anr. (Civil Appeal No(s).8558 of
// 5 //
2018, Petitioners because of their long continuance even
w.e.f.23.12.1995, are eligible and entitled to get the benefit of
regularization and the ground on which their claim has been
rejected vide the impugned order is not sustainable in the eye of
law.
4.6. View expressed by the Hon'ble Apex Court in the case of
Jaggo as cited supra in Para-22 to 25 and 27 reads as follows:-
"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
Declaration6 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 judgement of the United State in the
case of Vizcaino v. Microsoft Corporation7 serves as a
// 6 //
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
// 7 //
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.
xxxx xxxx xxxx
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."
4.7. Hon'ble Apex Court in the case of Shripal as cited (supra) in
Para-14, 15, 17 & 18(IV) has held as follows:-
"14. ...... More importantly, Uma Devi cannot serve as a
shield to justify exploitative engagements persisting
// 8 //
for years without the Employer undertaking legitimate
recruitment.
15. ....... Indian labour law strongly disfavors perpetual
daily-wage or contractual engagements in
circumstances where the work is permanent in nature.
xxx xxx xxx
17. Indeed, bureaucratic limitations cannot trump the
legitimate rights of workmen who have served
continuously in de facto regular roles for an
extended period.
18.(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."
4.8. Hon'ble Apex Court in the case of Dharam Singh as cited supra
in Paragraph-13,14,15 & 17,18,19 & 20 has held as follows:
"13. As we have observed in both Jaggo (Supra) and Shripal
(Supra), outsourcing cannot become a convenient shield to
perpetuate precariousness and to sidestep fair engagement
practices where the work is inherently perennial. The
Commission's further contention that the appellants are not
"full-time" employees but continue only by virtue of interim
orders also does not advance their case. That interim
protection was granted precisely because of the long history
of engagement and the pendency of the challenge to the
State's refusals. It neither creates rights that did not exist nor
erases entitlements that may arise upon a proper
adjudication of the legality of those refusals.
// 9 //
14. The learned Single Judge of the High Court also declined
relief on the footing that the petitioners had not specifically
assailed the subsequent decision dated 25.11.2003. However,
that view overlooks that the writ petition squarely challenged
the 11.11.1999 refusal as the High Court itself directed a
fresh decision during pendency, and the later rejection was
placed on record by the respondents. In such circumstances,
we believe that the High Court was obliged to examine the
legality of the State's stance in refusing sanction, whether in
1999 or upon reconsideration in 2003, rather than dispose of
the matter on a mere technicality. The Division Bench of the
High Court compounded the error by affirming the dismissal
without engaging with the principal challenge or the
intervening material. The approach of both the Courts, in
reducing the dispute to a mechanical enquiry about "rules"
and "vacancy" while ignoring the core question of
arbitrariness in the State's refusal to sanction posts despite
perennial need and long service, cannot be sustained.
15. Therefore, in view of the foregoing observations, the
impugned order of the High Court cannot be sustained. The
State's refusals dated 11.11.1999 and 25.11.2003,in so far as
they concern the Commission's proposals for
sanction/creation of Class-III/Class-IV posts to address
perennial ministerial/attendant work, are held unsustainable
and stand quashed.
xxx xxx xxx
17. Before concluding, we think it necessary to recall that the
State (here referring to both the Union and the State
governments) is not a mere market participant but a
constitutional employer. It cannot balance budgets on the
backs of those who perform the most basic and recurring
public functions. Where work recurs day after day and year
after year, the establishment must reflect that reality in its
sanctioned strength and engagement practices. The long-term
extraction of regular labour under temporary labels corrodes
confidence in public administration and offends the promise
of equal protection. Financial stringency certainly has a
place in public policy, but it is not a talisman that overrides
fairness, reason and the duty to organise work on lawful
lines.
18. Moreover, it must necessarily be noted that "ad-hocism"
thrives where administration is opaque. The State
Departments must keep and produce accurate establishment
registers, muster rolls and outsourcing arrangements, and
they must explain, with evidence, why they prefer precarious
// 10 //
engagement over sanctioned posts where the work is
perennial. If "constraint" is invoked, the record should show
what alternatives were considered, why similarly placed
workers were treated differently, and how the chosen course
aligns with Articles 14, 16 and 21 of the Constitution of
India. Sensitivity to the human consequences of prolonged
insecurity is not sentimentality. It is an institutional discipline
that should inform every decision affecting those who keep
public offices running.
19. Having regard to the long, undisputed service of the
appellants, the admitted perennial nature of their duties, and
the material indicating vacancies and comparator
regularisations, we issue the following directions:
i. Regularization and creation of Supernumerary posts: All
appellants shall stand regularized with effect from
24.04.2002, the date on which the High Court directed a
fresh recommendation by the Commission and a fresh
decision by the State on sanctioning posts for the appellants.
For this purpose, the State and the successor establishment
(U.P. Education Services Selection Commission) shall create
supernumerary posts in the corresponding cadres, Class-III
(Driver or equivalent) and Class-IV (Peon/Attendant/Guard
or equivalent) without any caveats or preconditions. On
regularization, each appellant shall be placed at not less than
the minimum of the regular pay-scale for the post, with
protection of last-drawn wages if higher and the appellants
shall be entitled to the subsequent increments in the pay scale
as per the pay grade. For seniority and promotion, service
shall count from the date of regularization as given above.
ii. Financial consequences and arrears: Each appellant shall
be paid as arrears the full difference between (a) the pay and
admissible allowances at the minimum of the regular pay-
level for the post from time to time, and (b) the amounts
actually paid, for the period from 24.04.2002 until the date
of regularization /retirement/death, as the case may be.
Amounts already paid under previous interim directions shall
be so adjusted. The net arrears shall be released within three
months and if in default, the unpaid amount shall carry
compound interest at 6% per annum from the date of default
until payment.
iii. Retired appellants: Any appellant who has already retired
shall be granted regularization with effect from 24.04.2002
until the date of superannuation for pay fixation, arrears
under clause (ii), and recalculation of pension, gratuity and
// 11 //
other terminal dues. The revised pension and terminal dues
shall be paid within three months of this Judgment.
iv. Deceased appellants: In the case of Appellant No. 5 and
any other appellant who has died during pendency, his/her
legal representatives on record shall be paid the arrears
under clause (ii) up to the date of death, together with all
terminal/retiral dues recalculated consistently with clause (i),
within three months of this Judgement.
v. Compliance affidavit: The Principal Secretary, Higher
Education Department, Government of Uttar Pradesh, or the
Secretary of the U.P. Education Services Selection
Commission or the prevalent competent authority, shall file
an affidavit of compliance before this Court within four
months of this Judgement.
20. We have framed these directions comprehensively
because, case after case, orders of this Court in such
matters have been met with fresh technicalities, rolling
"reconsiderations," and administrative drift which further
prolongs the insecurity for those who have already
laboured for years on daily wages. Therefore, we have
learned that Justice in such cases cannot rest on simpliciter
directions, but it demands imposition of clear duties, fixed
timelines, and verifiable compliance .As a constitutional
employer, the State is held to a higher standard and
therefore it must organise its perennial workers on a
sanctioned footing, create a budget for lawful engagement,
and implement judicial directions in letter and spirit. Delay
to follow these obligations is not mere negligence but rather
it is a conscious method of denial that erodes livelihoods
and dignity for these workers. The operative scheme we
have set here comprising of creation of supernumerary
posts, full regularization, subsequent financial benefits, and
a sworn affidavit of compliance, is therefore a pathway
designed to convert rights into outcomes and to reaffirm
that fairness in engagement and transparency in
administration are not matters of grace, but obligations
under Articles 14, 16 and 21 of the Constitution of India."
// 12 //
5. Mr. D. Nayak, learned counsel appearing for the Corporation on the
other hand made his submission basing on the stand taken in the
counter affidavit so filed by Opp. Party Nos. 3 to 5. Though it is not
disputed that all the Petitioners were engaged in the year 1992, but it
is contended that Petitioners were disengaged w.e.f.11.12.1995. The
said order when was challenged in OJC No. 9113 of 1995, this Court
passed an interim order on 19.12.1995 by directing therein for
maintenance of status quo.
5.1. It is contended that in view of the interim order so passed on
19.12.1995, Petitioners continued after their reengagement on
23.12.1995 vide order under Annexure-2. It is contended that since
Petitioners continued because of the interim order passed by this Court
on 19.12.1995 till the writ petition was ultimately dismissed vide
order dtd.22.11.2021, ratio decided in the case of Secretary, State of
Karnataka Vs. Uma Devi, (2006) 4 SCC-1 is not made applicable to
the claim of the Petitioners.
5.2. It is also contended that after rejection of their claim vide the
impugned order, Petitioners are also continuing because of the interim
order passed in the present writ petition on 18.05.2022. It is
accordingly contended that since Petitioners after their reengagement
// 13 //
in the year 1995, are continuing by virtue of the interim order passed
in OJC No. 9113 of 1995 and now in the present writ petition,
Petitioners are not eligible and entitled to get the benefit of
regularization and their claim is not covered as per the decision in the
case of Uma Devi as cited supra and subsequent decision of the Apex
Court in the case of Jaggo, Shripal as well as Dharam Singh as cited
supra. It is accordingly contended that no illegality or irregularity can
be found with the impugned order, in rejecting the Petitioners' claim.
5.3. Since Petitioners' engagement was counted w.e.f.23.12.1995 and
challenge made to the same in W.P.(C) No. 12232 of 2010 was not
acceded to with passing of the order dt.04.09.2015 under Annexure-4,
Petitioners' engagement being after 12.04.1993, they are not eligible
to get the benefit of regularization. It is contended that in view of the
Finance Dept. Resolution dt.15.05.1997, the cut-off date for
engagement of NMR/DLR being 12.04.1993 and Petitioners'
engagement having been taken as 23.12.1995, Petitioners are not
eligible to get the benefit of regularization.
6. To the submission made by Mr. Nayak, learned counsel appearing
for the Corporation, Mr. Mishra, learned Sr. Counsel appearing for the
Petitioners made further submissions contending inter alia that since
// 14 //
after passing of the impugned order on 19.12.1995, Petitioners were
suo moto reengaged vide order dtd.23.12.1995 under Annexure-2, it
cannot be held that Petitioners continued by virtue of the interim order
passed on 19.12.1995.
6.1. Learned Sr. Counsel also contended that cut-off date 12.04.1993
is not applicable to the employees working in different Urban Local
Bodies of the State in view of the notification of the Department
issued on 15.12.2000, wherein the cut-off date for such employee has
been fixed at 19.05.1997. It is accordingly contended that the ground
on which Petitioners' claim has been rejected vide the impugned order
requires interference of this Court.
7. Having heard learned counsel appearing for the Parties and
considering the submissions made, it is found that all the Petitioners
were engaged as DLRs in the establishment of the then Cuttack
Municipality in the year 1992. While so continuing, when the
Petitioners were disengaged w.e.f.11.12.1995, the matter was carried
to this Court in OJC No. 9113 of 1995. This Court when passed an
interim order on 19.12.1995 directing for maintenance of status quo,
Petitioners were suo moto reengaged vide order dtd.23.12.1995 under
Annexure-4.
// 15 //
7.1. In view of such action taken by the then Municipality, it is the
view of this Court that Petitioners after 23.12.1995 never continued by
virtue of the interim order passed by this Court on 19.12.1995 and it is
also a suo moto action by the then Cuttack Municipality. Since it is
not disputed that after their reengagement vide order dtd.23.12.1995,
Petitioners continued all through, dismissal of the writ petition in OJC
No. 9113 of 1995 vide order dtd.22.11.2021, as per the considered
view of this Court is not a bar to consider the eligibility and
entitlement of the Petitioners to get the benefit of regularization.
7.2. Since Petitioners after their reengagement vide order
dtd.23.12.1995 were allowed to continue all through, it is the view of
this Court that Petitioners' claim falls within the ratio decided by the
Apex Court in the case of Secretary, State of Karnataka Vs. Uma
Devi, (2006) 4 SCC-1, so followed in the case of State of Karnatak
Vs. M.L. Keshari (2010)9 SCC 247) and now the recent decisions of
the Hon'ble Apex Court in the case of Jaggo, Shripal as well as
Dharam Singh as cited supra. The cut-off date 12.04.1993 is also not
applicable in view of the stipulation contained in notification
dt.15.12.2000 of the Housing & U.D. Department.
// 16 //
7.3. In view of the aforesaid analysis, this Court is of the view that the
ground on which Petitioners' claim has been rejected is not
sustainable in the eye of law. Therefore, this Court while quashing the
said order, directs Opp. Party No. 3 to take a fresh decision with
regard to the eligibility of the Petitioners to get the benefit of
regularization taking into account the ratio decided in the case of
Jaggo, Shripal as well as Dharam Singh as cited supra and the
earlier decision in the case of Uma Devi. Such a fresh order be passed
within a period of three (3) months from the date of receipt of this
order with due communication to the Petitioner No. 1.
8. The writ petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
JUDGE
Orissa High Court, Cuttack
Dated the 28th of November, 2025/Sneha
Location: High Court of Orissa, Cuttack
