Orissa High Court
Bauribandhu Jena vs State Of Odisha & Ors. .... Opposite ... on 16 October, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26171 of 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Bauribandhu Jena .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : Mr. B.S. Tripathy-1, Sr. Advocate
along with
Mr. A. Tripathy, Advocate
For Opp. Parties : Mr. P.K. Panda
Addl. Standing Counsel
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 15.10.2025 and Date of Judgment: 15.10.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. B.S. Tripathy-1 learned Sr. Counsel appearing for the
Petitioner along with Mr. A. Tripathy, learned counsel and Mr. P.K.
Panda, learned Addl. Standing Counsel appearing for the Opp. Parties.
// 2 //
3. The present writ petition has been filed inter alia challenging order
dtd.01.03.2021 so passed by Opp. Party No. 1 under Annexure-9,
wherein claim of the Petitioner to get the benefit of regularization was
rejected.
4. Learned counsel appearing for the Petitioner contended that
Petitioner was engaged as a NMR in the establishment of Opp. Party
No. 2 w.e.f.02.05.1997. It is contended that even though Petitioner
was engaged as a NMR w.e.f.02.05.1997 and the cut-off date so fixed
by the Govt. in its communication dtd.15.12.2000 under Annexure-2
is 19.05.1997, but on the face of such long continuance when
Petitioner was not regularized, he approached this Court by filing
W.P.(C) No. 7104 of 2020.
4.1. It is contended that this Court when directed Opp. Party No. 1 to
consider the claim of the Petitioner to get the benefit of regularization
in the light of the decision in the case of Secretary, State of
Karnataka Vs. Uma Devi, (2006) 4 SCC-1, such claim of the
Petitioner was rejected on the ground that Petitioner is continuing by
virtue of an interim order passed by this Court in W.P.(C) No. 1291 of
2002 and as he is not continuing against the sanctioned post.
// 3 //
4.2. Learned counsel appearing for the Petitioner contended that
Petitioner is not a party to the proceeding in W.P.(C) No. 1291 of
2002 and the order passed by the NAC under Annexure-3 was
modified vide order dtd.02.03.2021 of the Govt.-Opp. Party No. 1
under Annexure-10. It is accordingly contended that Petitioner never
continued as a NMR by virtue of any interim order and all through he
is continuing in the establishment of Opp. Party No. 2. Accordingly,
he is covered by the decision of the Hon'ble Apex Court in the case of
Uma Devi as cited supra and now the subsequent decisions 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 2018.
4.3. 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
// 4 //
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
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:
// 5 //
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.
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
// 6 //
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."
4.4. 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
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."
// 7 //
4.5. 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.
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
// 8 //
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
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.
// 9 //
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
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,
// 10 //
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."
4.6. It is also contended that claim of the Petitioner is covered by the
judgment passed by this Court in W.P.(C) No. 11745 of 2022
disposed of on 30.07.2025. It is accordingly contended that the ground
on which claim of the Petitioner is rejected, is not sustainable in the
eye of law.
5. Mr. P.K. Panda, learned Addl. Standing Counsel on the other hand
while supporting the impugned order, contended that since Petitioner
after his engagement as a NMR w.e.f.02.05.1997 continued by virtue
of the interim order passed by this Court in W.P.(C) No. 1291 of
2002, Petitioner is not covered by the decision of the Hon'ble Apex
Court in the case of Uma Devi as cited supra. It is accordingly
contended that since Petitioner continued by virtue of an interim order
passed by this Court in the aforesaid writ petition, his claim after
being considered in terms of the earlier order passed by this Court was
rejected vide the impugned order dtd.01.03.2021 under Annexur-9. It
// 11 //
is also contended that Petitioner is not continuing against the
sanctioned post and accordingly no regularization can be made.
6. Mr. M. Mohanty, learned counsel appearing for the Opp. Party-
Council while not disputing the engagement and continuance of the
Petitioner as a NMR w.e.f.02.05.1997, contended that Petitioner's
claim can be considered by the Govt. and since it is rejected by the
Govt., Opp. Party No. 1 is to take a fresh decision.
7. Having heard learned counsel appearing for the Parties and
considering the submissions made, this Court finds that Petitioner was
engaged as a NMR in the establishment of Opp. Party No. 2
w.e.f.02.05.1997. It is not disputed that Petitioner is not continuing
w.e.f.02.05.1997 to till date without any break in engagement and his
initial engagement is before the cut-off date so fixed by the Dept.
under Annexure-2. Taking into account the clarification issued by the
Govt. in its communication dtd.02.03.2021 under Annexure-10, it is
the view of this Court that Petitioner is not protected by any interim
order passed by any court of law.
7.1. Therefore, it is the view of this Court that the ground on which
Petitioner's claim has been rejected vide the impugned order is not
sustainable in the eye of law.
// 12 //
7.2. In view of the aforesaid analysis and placing reliance on the
recent decisions of the Hon'ble Apex Court in the case of Jaggo,
Shripal as well as Dharam Singh as cited supra, it is the view of this
Court that the Petitioner is entitled to get the benefit of regularization.
Accordingly, while quashing the impugned order, this Court directs
Opp. Party No. 1 to pass an appropriate order by regularizing the
services of the Petitioner. This Court directs Opp. Party No. 1 to pass
a fresh order as directed within a period of two (2) months from the
date of receipt of this order.
8. The writ petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
JUDGE
Orissa High Court, Cuttack
Dated the 15th of October, 2025/Sneha
Location: High Court of Orissa, Cuttack
