Orissa High Court
Manas Ranjan Samal (Since Dead) vs State Of Odisha And Others .... Opposite ... on 24 October, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.7661 of 2020,
W.P.(C) No. 6682 of 2020,
W.P.(C) No. 9555 of 2020,
W.P.(C) No.12165 of 2020 &
W.P.(C) No.15485 of 2020
Applications under Articles 226 & 227 of Constitution of India.
---------------
AFR W.P.(C) No.7661 of 2020
Manas Ranjan Samal (since dead)
through his LRs and Others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.6682 of 2020
Natabar Panda and Others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.9555 of 2020
Santosh Kumar Panigrahy .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.12165 of 2020
Sakti Prasad Mohanty and Others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.15485 of 2020
Sadananda Mohanta .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
Page 1 of 32
Advocate(s) appeared in these cases:-
________________________________________________________
For Petitioner(s) : M/s. Budhadev Routray, Sr. Advocate
with M/s. K. Mohanty, S.K. Samal, S.P.
Nath, S.D. Routray, B.P. Pattanayak, S.
Sekhar, J. Biswal & M. Panda, Advocates.
[In W.P.(C) No. 7661 of 2020 ]
M/s. Sidheswar Mallik, P.C. Das, M. Mallik
& S. Mallick, Advocates
[ In W.P.(C) No.6682 of 2020, W.P.(C)
No.9555 of 2020 & W.P.(C) No.12165 of
2020]
M/s. Kishore Kumar Mohanty & S.K.
Mohanta, Advocates.
[In W.P.(C) No. 15485 of 2020]
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
M/s. Satyabrata Mohanty-1, & T.K.
Kamila, Advocates with
Mr. Ashok Kumar Panigrahi, Advocate
(For OLIC]
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
24 October, 2025
SASHIKANTA MISHRA, J. All these writ applications involve
common facts and law and being heard together, are
disposed of by this common judgment.
2. For brevity, the facts of W.P.(C) No. 7661 of 2020
are being referred to in this judgment.
3. The petitioners, 16 in numbers, have filed this
writ application seeking the following relief:
"It is therefore, most humbly prayed that this
Hon'ble Court be graciously pleased to
(i) Admit the writ application.
(ii) Call for the record.
(iii) Issue Rule Nisi calling upon the opposite
parties to show cause as to why the order dated
25.11.2019 under Annexure-11 and 31.12.2019
under Annexure-12 shall not be quashed being
illegal and arbitrary.
(iv) If the opposite parties do not show cause or
show insufficient cause issue a writ in the nature
of certiorari or any other appropriate writ/writs,
order/writs, direction/directions quashing the
letter dated 25.11.2019 under Annexure-11 and
31.12.2019 under Annexure-12.
(v) Issue a writ in the nature of mandamus or
any other writ/writs direction/directions
directing the opposite parties to regularize the
services of the petitioners from the initial date of
appointment and grant consequential service and
financial benefit with retrospective effect as and
when they complete six years of regular service
as Junior Engineer (Mechanical) or contractual
basis.
(vi) And/or pass such other order/orders,
direction/directions as this Hon'ble Court may
deems fit and proper for the ends of justice.
And for the said act of kindness, the
petitioner as in duty bound shall ever pray."
Be it noted that the original petitioner No.1- Manas Ranjan
Samal, having died during pendency of this case, has been
substituted by his legal representatives. Petitioner No.6-
Manas Ranjan Mohanty has retired during pendency of this
writ application. Petitioner No.16- Gopabandhu Boitai was
disengaged from service also during pendency of this writ
application.
FACTS
4. An advertisement was issued on 09.11.2011 by
the opposite party No.2 -Orissa Lift Irrigation Corporation
Ltd. (OLIC) inviting applications from intending candidates
to fill up different posts under Biju Krushak Vikas Yojana
Deep Bore Well Secha Karyakrama (BKVY-DBSK) on
contractual basis though a walk-in-interview. Twenty posts
of Junior Engineer (Mechanical) were notified carrying
consolidated remuneration of Rs.9300/-. The petitioners
appeared in the interview held on 19.11.2011 whereafter, a
list containing 87 candidates was prepared. Consequently,
the petitioners were offered appointment as per letter dated
14.12.2011 followed by individual letters of posting issued
on different dates.
4.1 It was mentioned in the letter of engagement that
the engagement is purely for the purpose of Project
Management Unit (PMU) for Deep Bore Well Secha
Karyakrama and has no relationship with regular
establishment of OLIC. Further, the offer was said to be valid
for a period of one year from the date of joining based on the
terms of contract. The engagement of the petitioners was
extended for a period of one year from time to time. On
05.02.2018, the petitioners, having completed 8 years of
service in their respective posts submitted representation
before the opposite party No.2 with prayer for regularization
of their services. Since no action was taken they approached
this Court in W.P.(C) No.2870 of 2019. By order dated
07.11.2019, this Court directed the opposite party
authorities to consider the grievance of the petitioners within
a period of two months. On 25.11.2019, the Joint Secretary
to Government in Department of Water Resources wrote to
the opposite party No.2 that the manpower for State Project
Unit (SPU) and Divisional Project Unit (DPU) should be made
on re-deployment and outsourcing basis. Therefore, the
contractual engagement should be discouraged and replaced
by outsourcing manpower before submission of subsequent
renewal. By order dated 31.12.2019, the opposite party No.2
rejected the representation of the petitioners on the ground
that the same had no merit as the appointment of the
petitioners was purely on contractual basis having no
relationship with regular establishment of OLIC.
4.2. According to the petitioners, though there are
regular vacancies available, the action of the authorities in
not regularizing the services of the petitioners is illegal and
unacceptable. By order dated 29.02.2020, the opposite party
No.2 decided not to extend the engagement of the petitioners
from 31.03.2020. Prior to that, the opposite party No.2
issued a request for a proposal on 12.03.2020 for selection
of Facility Management Agency to provide facility
management services on outsourcing basis through a service
contract. Accordingly, 35 posts of Junior Engineer
(Mechanical) were advertised including the vacancies against
which the petitioners have been continuing since 2011.
Further, another set of contractual employees i.e., Diploma
Holder Engineers, selected and empaneled by the
Government with their services placed under OLIC were
terminated from service. They approached this Court in OJC
No. 11308 of 2001. This Court, by order dated 06.03.2019
directed the authorities to consider their case and extend the
benefit of regularization and also scale of pay as admissible.
The order not being complied, contempt applications were
filed and ultimately by order dated 13.12.2021, said
petitioners were regularized. The petitioners stand on the
same footing. It is stated that the petitioners are working
against Group-B posts and having completed six years of
continuous service, are entitled to be regularized in terms of
the Rules framed by the State Government for regularization
of contractual employees in 2013.
4.3. Be it noted that the petitioners in other writ
applications (W.P.(C) Nos.6682, 9555 & 15485 of 2020) are
also working as Junior Engineer (Mechanical) and
petitioners in W.P.(C) No. 12165 of 2020 have been working
as Asst. Engineer (Civil) being engaged pursuant to the same
advertisement i.e., 09.02.2011. All other facts relating to
their engagement and service conditions are the same as the
petitioners in the lead case.
STAND OF THE STATE GOVERNMENT
5. The State Government has filed a counter affidavit
refuting the averments of the writ application as follows:
5.1 BKVY-DBSK started its operation during the year
2010-11 under OLIC for installation of Deep Bore Wells in a
massive way in hard rock/hilly tracts of 17 districts in the
first phase. Later, it was extended to 26 districts during the
year 2011-12. Since it was not possible to operationalize the
said scheme with the existing staff of OLIC, a proposal was
submitted to Finance Department for approval of PMU so
that additional manpower can be hired on redeployment and
outsourcing basis. The Finance Department approved the
proposal and communicated to OLIC vide letter dated
27.10.2011 for setting up a State Project Unit (SPU) and 10
nos. of Divisional Project Units (DPU) for effective monitoring
of works under BKVY-DBSK by sanctioning 26 posts for SPU
and 100 posts for 10 DPUs. Such sanction was with
stipulation that engagement for the said post shall be on
redeployment from OLIC/outsourcing basis. The person
concerned who desires to join will submit an undertaking in
terms of Finance Department Circular No.55764/F dated
31.12.2004 and engagement would be for the project period
only and there would be no claim whatsoever beyond the
project period.
5.2 After extending the scheme to 26 districts, another
proposal was submitted to Finance Department for
constitution of 5 more DPUs and creation of posts. Finance
Department in its letter dated 14.02.2012 agreed with the
proposal and created 50 posts, out of which 40 posts were to
be filled up on redeployment basis and then on outsourcing
basis by OLIC.
5.3. As per concurrence of the Finance Department,
OLIC was instructed to engage personnel on redeployment
from OLIC/outsourcing basis and not on contractual basis.
The Government had also communicated the observations of
Finance Department to opposite party No.2 regarding
proposal of extension of SPU and DPU for the period from
01.04.2019 to 31.03.2020 in the following manner.
"Man power for SPU and DPU should be made on
redeployment and outsourcing basis. Therefore, the
Contractual engagement should be discouraged and
replaced by outsourcing manpower before
submission of subsequent renewal."
As per the terms and conditions laid down in Clause 12(1) of
the agreement, the contractual engagement of the petitioners
has been ceased w.e.f. 31.03.2020. However, in view of the
interim order passed by this Court in the present writ
application, the petitioners have been allowed to work in
OLIC awaiting further orders.
5.4. Finance Department had agreed for constitution
of the SPU and DPU on the condition that the posts shall be
filled up by redeployment on outsourcing basis and the
candidates who desire to join will submit an undertaking in
terms of Finance Department Circular dated 31.12.2004 and
engagement is for the project period only and there will be
no claim whatsoever beyond the project period. Accordingly,
the petitioners submitted undertaking that in future they
shall not claim regular scale of pay and other allowances. As
such, the claim of the petitioners for regularisation after
completion of six years is devoid of merit.
STAND OF THE OLIC
6. OLIC has filed counter more or less on similar
lines as the State. It is stated that the contractual
engagement of the petitioners were purely for the PMU of the
scheme having no relationship with regular establishment of
OLIC. The engagement of the petitioners was on contract
basis with monthly consolidated remuneration of Rs.9,300/-
and offer was for a period of one year from the date of
joining. Once the petitioners accepted the engagement letter
without protest and submitted individual undertakings that
in future they shall not claim regular scale of pay and other
allowances for continuing in the said post, they are estopped
to claim regularisation. As such, their claim of regularisation
is misconceived.
6.1 The engagement of the petitioners was initially for
a period of one year and was extended for similar period with
concurrence of Finance Department. In the engagement
orders issued to the petitioners, it is clearly stipulated that
the engagement is for the scheme and has no relationship
with the regular establishment of OLIC. Subsequently, by
letter dated 25.11.2019, the Government had directed that
the manpower for SPU and DPU should be made on
redeployment and outsourcing basis and contractual
engagement should be discouraged and replaced by
outsourcing manpower before submission of subsequent
renewal. As per clause-12.1 of the agreement signed by the
petitioners, their contractual engagement has ceased w.e.f.
29.02.2020 but they are continuing in view of interim order
passed by this Court. The claim for regularisation laid by the
petitioners is contrary to law and as per the judgment of the
Supreme Court in State of Karnataka vs. Uma Devi1, they
have no right to continue in the post after the contract
period is over. As regards the Contractual Rules, 2013, the
same is not applicable as the petitioners were appointed
much prior to coming into force of the same. Moreover, the
petitioners are engaged in a project under a Scheme.
SUBMISSIONS
7. Heard Mr. B. Routray, learned Senior Counsel
with Mr. J. Biswal, learned counsel for the petitioners, who
1 AIR 2006 SC 1806
led arguments on behalf of the petitioners in the connected
writ applications also; Mr. S.N. Pattnaik, learned Addl.
Government Advocate for the State; Mr. S. Mohanty, learned
counsel appearing for OLIC (opposite party No.2).
8. Mr. Routray would argue that there is no dispute
that the petitioners were engaged on contractual basis and
their services were renewed from time to time. This shows
that the work is available in the establishment. Only
because the petitioners laid claim for regularization of
services, the authorities, adopting a vindictive attitude
decided to terminate their services by issuing the impugned
order under Annexure-15. Mr. Routray further submits that
the authorities have proposed to engage persons on
outsourcing basis against the posts in which the petitioners
are engaged, which is contrary to law that one set of
temporary employees cannot be replaced by another set.
9. Mr. Routray draws attention of the Court to the
case of Prasanta Kishore Pal and Mrutyunjaya Laha, who
are identically placed as the petitioners, inasmuch as both of
them were engaged along with the petitioners, but have
since been regularized. This, according to Mr. Routray
amounts to gross discrimination.
10. Mr. Routray has cited the following judgments in
support of his contentions:
"1. Chander Mohan Negi v. State of H.P.2
2. Jaggo v. Union of India3
3. Shripal v. Nagar Nigam4
4. Balabhadra Majhi vs. State of Odisha and
Ors.5"
11. Mr. S.N. Pattnaik, learned Addl. Government
Advocate on the other hand, would argue that the
petitioners were engaged under a Scheme for a particular
period. It is immaterial that their engagements were renewed
from time to time. Mere renewal does not take away the fact
that their engagements were temporary and on contract
basis and by signing undertaking that they shall not claim
regularization in future. As such, they are estopped to lay
claim for regularization. Mr. Pattnaik further argues that in
any case the contractual engagements have ceased and
advertisement was issued for 8 regular posts of Junior
2 (2020) 5 SCC 732
3 2024 SCC OnLine SC 3826
4 2025 SCC OnLine SC 221
5 MANU/OR/0949/2022
Engineer (Mechanical) on 06.04.2023. The selection process
has been completed but no order of appointment has been
issued because of interim order dated 08.05.2023 passed by
this Court in W.P.(C) No. 13030 of 2023.
12. Mr. Mohanty, learned counsel appearing for OLIC
makes more or less similar arguments as the State Counsel
and additionally submits that OLIC being a public sector
undertaking has to abide by the direction of the State
Government. Since the State Government decided to replace
contractual employees with outsourced employees, fresh
advertisement was issued and selection process was
undertaken. He further submits that the petitioners were
aware of the nature of their engagement from the very
beginning and had also signed undertaking for not claiming
regularization in future. As such, they are estopped to do so
at this stage.
ANALYSIS AND FINDINGS
13. The facts as laid are not disputed. The petitioners
applied for engagement pursuant to advertisement dated
09.11.2011 and having undergone a selection process were
engaged. Letter dated 14.12.2011 issued to the selected
candidates mentions the following:
"Consequent upon your provisional selection for the
aforesaid position the Managing Director, Orissa Lift
Irrigation Corporation Limited is pleased to offer you
to join in Project Management Unit (DPU) of "BKVY
Deep Bore Well Secha Karyakrama on contract basis
with monthly/consolidated remuneration of
Rs.9300/-(Rupees nine thousand three hundred)
only per month. This offer is for a period of one year
from the date of joining based on the terms of
contract subject to verification of all original
documents/testimonials stated in your original
application. The engagement is purely for the
purpose of PMU for Deep Bore Well Secha
Karyakrama and has no relationship with regular
establishment of OLIC"
14. It is also not disputed that the petitioners
submitted undertakings not to claim regular scale of pay in
future. Their engagements were extended/renewed from
time to time on yearly basis. From the stand taken by the
State as well as OLIC, it is evident that the basic objection
raised by them is to the effect that the engagement was for a
project under a scheme called BKVY-DBSK. The order dated
27.10.2011 of the Government in Department of Water
Resources, copy of which is enclosed as Annexure-A/2 to
the counter filed by the OLIC, contains the modalities for
filling up the posts. After laying down the modalities, the
order states as follows:
"The above engagement is only for the project period
and person concerned who desires to join will
submit an undertaking in terms of Finance Deptt.
Circular No.55764-F dt:31.12.2004 (copy enclosed).
There will be no claim whatsoever beyond
the project period."
15. So, it is basically contended that the engagement
was only for the project period. A model form for a written
undertaking is also enclosed, inter alia, stating as follows:
"Further, I do hereby give an undertaking that in
future I shall not claim regular scale of pay and other
allowances for continuing in the said post merely on
the ground that I have been given a contract
appointment and my contractual appointment has
been extended from time to time."
16. Thus, two things are evident: - firstly, the
engagement was for the project period only and secondly,
the petitioners are bound by the undertaking submitted by
them to not claim regularization in future. As to the first
point, this Court found that despite styling the work as a
'Project' there is no gainsaying the fact that the work in
which the petitioners were engaged, i.e., excavation of Deep
Bore Wells in hilly tracts, is intrinsic to the work of OLIC. In
other words, the work was not something beyond the regular
work of OLIC. That apart, the very fact that the contracts
were renewed every year till 2019 implies
availability/continuity of the work. It is not as if the work
was a one-time job undertaken for a specific period.
Therefore, notwithstanding the nomenclature used, the
materials on record clearly reveal that the work is perennial
in nature and inherent to the regular work of OLIC. This
becomes all the more evident from the fact that the
contractual engagees like the petitioners were deputed to
different districts where they rendered the same work as the
regular employees. In the advertisement issued, 8 posts of
Junior Engineer (Mechanical) have been notified for being
filled up and it is not demonstrated that these posts are
meant for persons to be engaged in work distinct and
separate from the work being done by the contractual
appointees.
17. After going through the materials on record which
includes the decision of the Finance Department as per the
note sheet enclosed vide Annexure-A/2 series, this Court is
left with no doubt that the so-called decision to engage
persons under the Scheme 'on outsourcing' basis is nothing
but a subterfuge, evidently intended to disown the
responsibility of adding these persons to the regular
establishment. Moreover, the fact that the Finance
Department also allowed redeployment of regular staff of
OLIC to the same work, indicates that the work is inherent
to the regular work of OLIC. Therefore, for the authorities to
now wash off their hands by labeling the work as temporary
cannot be accepted. This is being said also for the reason
that the very same project has been allowed to continue
though in the garb of engaging personnel on outsourcing
basis instead of contract basis. This, according to the
considered view of this Court, is also a subterfuge. In any
case, it is the settled law that one set of temporary
employees cannot be replaced by another set of temporary
employees. Reference may be had to the judgment of the
Supreme Court in the case of State of Haryana and others
vs. Piara Singh and others6, where the following
observations are noteworthy.
"46. Secondly, an ad hoc or temporary employee
should not be replaced by another ad hoc or
temporary employee; he must be replaced only by a
regularly selected employee. This is necessary to
avoid arbitrary action on the part of the
appointing authority."
18. The ratio decided in Umadevi (supra) has been
relied upon by opposite parties but then the Supreme Court
in the case of Jaggo (Supra) dealt with it in the following
words:
"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 v. Union of India, it was
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
(1992) 4 SCC 118
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..."
It has neither been stated nor demonstrated that initial
engagements of the petitioners were illegal in any manner.
On the contrary, the engagements were against posts
sanctioned by Finance Department and on the basis of their
performance in a walk-in-interview. The argument advanced
on behalf of the opposite parties is therefore, not tenable.
19. This is a case where persons rendering regular
work in the establishment have been classified as purely
temporary or contractual employees having no connection
with the regular establishment. This approach has also been
frowned upon by the Supreme Court in the aforementioned
case of Jaggo (supra), relying upon the landmark judgment
of the US Court of Appeals for the 9th circuit in the case of
Vizcaino v. Microsoft Corporation7 with the following
observations:
"24. The landmark judgment 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."
7 97 F.3d 1187 (9th Cir.1996)
20. Going further, the Supreme Court in the said
case, expressed its concern that temporary employees,
particularly in government institutions, often face
multifaceted forms of exploitation. It was observed as
follows:
"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."
21. Finally, again referring to Umadevi (supra) it was
held as follows:
"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."
22. In view of the above authoritative pronouncement
of the Supreme Court, nothing really survives for
adjudication by this Court in the given facts and
circumstances of the case
23. The judgment in Jaggo (supra) was reiterated by
the Supreme Court in the case of Shripal (supra).
24. Much has been argued on behalf of the State as
well as OLIC that the petitioners are estopped to claim
regularisation in view of the undertakings submitted by
them at the time of their initial engagement. This Court is
not persuaded enough to place any reliance on such
undertakings for the reason that same would have no force
in law being submitted by persons with practically no
bargaining power. When unequals are pitted against each
other, undertakings of such nature can have no real value.
This is also the settled position of law. In this regard,
reference may be had to the oft-quoted judgment of the
Supreme Court in the case of Central Inland Water
Transport Corpn. v. Brojo Nath Ganguly8. The following
observations are noteworthy:
"88. As seen above, apart from judicial decisions, the
United States and the United Kingdom have
statutorily recognised, at least in certain areas of the
law of contracts, that there can be unreasonableness
(or lack of fairness, if one prefers that phrase) in a
contract or a clause in a contract where there is
inequality of bargaining power between the parties
although arising out of circumstances not within their
control or as a result of situations not of their
creation. Other legal systems also permit judicial
review of a contractual transaction entered into in
similar circumstances. For example, Section 138(2) of
the German Civil Code provides that a transaction is
void "when a person" exploits "the distressed
situation, inexperience, lack of judgmental ability, or
grave weakness of will of another to obtain the grant
or promise of pecuniary advantages ... which are
obviously disproportionate to the performance given
in return". The position according to the French law
is very much the same.
89. Should then our courts not advance with the
times? Should they still continue to cling to outmoded
concepts and outworn ideologies? Should we not
adjust our thinking caps to match the fashion of the
day? Should all jurisprudential development pass us
by, leaving us floundering in the sloughs of 19th
century theories? Should the strong be permitted to
push the weak to the wall? Should they be allowed
to ride roughshod over the weak? Should the courts
sit back and watch supinely while the strong
(1986) 3 SCC 156
trample underfoot the rights of the weak? We have a
Constitution for our country. Our judges are bound
by their oath to "uphold the Constitution and the
laws". The Constitution was enacted to secure to all
the citizens of this country social and economic
justice. Article 14 of the Constitution guarantees to
all persons equality before the law and the equal
protection of the laws. The principle deducible from
the above discussions on this part of the case is in
consonance with right and reason, intended to
secure social and economic justice and conforms to
the mandate of the great equality clause in Article
14. This principle is that the courts will not enforce
and will, when called upon to do so, strike down an
unfair and unreasonable contract, or an unfair and
unreasonable clause in a contract, entered into
between parties who are not equal in bargaining
power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the
different situations which can arise in the affairs of
men. One can only attempt to give some illustrations.
For instance, the above principle will apply where
the inequality of bargaining power is the result of the
great disparity in the economic strength of the
contracting parties. It will apply where the inequality
is the result of circumstances, whether of the
creation of the parties or not. It will apply to
situations in which the weaker party is in a position
in which he can obtain goods or services or means of
livelihood only upon the terms imposed by the
stronger party or go without them. It will also apply
where a man has no choice, or rather no meaningful
choice, but to give his assent to a contract or to sign
on the dotted line in a prescribed or standard form or
to accept a set of rules as part of the contract,
however unfair, unreasonable and unconscionable a
clause in that contract or form or rules may be. This
principle, however, will not apply where the
bargaining power of the contracting parties is equal
or almost equal. This principle may not apply where
both parties are businessmen and the contract is a
commercial transaction. In today's complex world of
giant corporations with their vast infrastructural
organizations and with the State through its
instrumentalities and agencies entering into almost
every branch of industry and commerce, there can be
myriad situations which result in unfair and
unreasonable bargains between parties possessing
wholly disproportionate and unequal bargaining
power. These cases can neither be enumerated nor
fully illustrated. The court must judge each case on
its own facts and circumstances."
25. Therefore, only because the petitioners submitted
the so-called undertakings cannot estopp them from
claiming regularisation. It need not be overemphasized that
right to livelihood is a fundamental right guaranteed under
Article 21 of the Constitution. So, to apply the principle of
estoppel by brandishing the undertaking submitted by the
petitioners would tantamount to violating their fundamental
right under Article 21 of the Constitution. It goes without
saying that as between the right under Article 21 and the so-
called undertaking, it is the former that would prevail.
26. This is a case of persons who have rendered
apparently satisfactory work to the establishment for long
periods of time without the pay attached to their counter-
parts in the regular establishment. If this is not exploitation,
then what is? The State cannot deny such pay and create
disparity among its employees. What the authorities have
done by labelling petitioners as temporary employees is to
create a class within a class inasmuch as two sets of
employees, one regular and the other temporary, are
engaged for the same work. While the former are
handsomely paid, the latter are doled out meagre
remuneration not commensurate with their labours for the
State.
27. It is also brought on record that two persons
namely, Prasanta Kishore Pal and Mrutyunjaya Laha, who
were engaged along with the petitioners have since been
regularized. The State Counsel has defended such action by
submitting that their regularisation was as per the order
passed by this Court in the writ application filed by them.
This argument is not acceptable for two reasons- firstly,
regularisation, for whatever reason, implies that the
authorities acknowledge the fact that both the said persons
were rendering service akin to their counterparts in the
regular establishment and secondly, there is nothing to
distinguish said persons from the petitioners.
28. From the foregoing narration, it is manifestly clear
that the petitioners have discharged duties in work essential
and inherent to the establishment of the OLIC since 2011.
That such work is still available is evidenced from the fact
that the same posts have been freshly advertised albeit to be
filled up on regular basis. Most significantly, the so-called
vacancies in the regular cadre have not been filled up for all
these years. On the other hand, the petitioners, despite
rendering continuous and apparently satisfactory service,
have been deprived of the scale of pay and other
concomitants of employment available to their regular
counterparts, which is nothing but an institutionalized
exploitation of the work force. The state is supposed to be a
model employer, as has been repeatedly emphasized by the
superior Courts of this country. It cannot be seen to be
adopting any subterfuge to deny and deprive persons
rendering work for long periods of time like a private
organization. For all these reasons, this Court is convinced
that the claim of the petitioners for regularization has been
laid on solid ground and cannot simply be ignored.
CONCLUSION
29. In the result, the writ petitions are allowed. The
orders dated 25.11.2019 (Annexure-11) and 31.12.2019
(Annexure-12) are hereby quashed. The opposite party
authorities are directed to regularise the services of the
petitioners against the available posts subject to their
eligibility within a period of two months from today. Upon
such regularisation, they shall be entitled to salary and
other service benefits admissible to regular employees of
OLIC including the differential salary from the date of their
regularisation. Such regularisation shall be effective from
the date of completion of six years of continuous service of
the petitioners from the date of their initial engagement. As
regards the legal heirs of petitioner No.1- Manas Ranjan
Samal in W.P.(C) No. 7661 of 2020, he shall be deemed to
have been regularised also from the above mentioned date.
His legal representatives shall be entitled to the arrears of
differential salary that he would have been entitled to till the
date of his death. Similarly, petitioner No.6- Manas Ranjan
Mohanty shall be deemed to have been regularised from the
aforementioned date and the arrear differential salary on
account of such regularisation shall be paid to him till the
date of his retirement. In so far as petitioner No.16-
Gopabandhu Boitai is concerned, he having been disengaged
but not specifically challenged the order of his
disengagement, no relief can be granted to him. In case,
adequate number of regular posts are not available to adjust
the petitioners in the manner directed by this Court,
supernumerary posts shall be created to adjust the
petitioners which shall stand abolished upon their
superannuation or vacation for any other reason.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 24th October, 2025/ A.K. Rana, P.A.
Location: HIGH COURT OF ORISSA, CUTTACK
