Orissa High Court
Pritiranjan Mahaling vs State Of Odisha & Others .... Opp. ... on 4 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 18172 OF 2024
In the matter of an application under Articles 226 & 227 of the
Constitution of India
Pritiranjan Mahaling .... Petitioner
-Versus-
State of Odisha & others .... Opp. Parties
Advocates appeared in this case:
For Petitioner : M/s. L. Mohanty, R. Das & S. Das,
Advocates
For Opp. Parties : Mr. J.K. Ray,
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
JUDGMENT
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Date of hearing & judgment : 04.09.2025
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PER DIXIT KRISHNA SHRIPAD,J.
Petitioner, who was appointed on ad hoc basis vide order dated
13.11.1991 at Annexure-1, is knocking at the doors of Writ Court
essentially to have a direction for regularization of his services, which
request has been turned down by the jurisdictional OPs.
2. Learned counsel appearing for the Petitioner vehemently argues that
a Model State like ours under the Constitution cannot keep the employees
of the kind with a 'Damocles Sword' hanging on the head without
regularization of their services for decades; he also tells the Court that the
four conditions mentioned in the appointment order would not operate at
all, inasmuch as three of them depend on the happening of the recruitment
process stipulated in condition no.1 and therefore, all these conditions
should be deemed to have been complied with or waived. He further
submits that whatever arguable irregularity at the entry level existed, would
diminish by the run of time and at this length of time, it completely
evaporates. In support of his case, he cites a Division Bench decision of this
Court in W.A. No.857 of 2024 & batch between Orissa Water Supply and
Sewerage Board v. Bijay Kumar Samal & Ors. decided on 30.07.2025.
3. The OPs have not filed any counter or objections to the petition and
therefore, ordinarily the petition averments need to be taken with their face
value, subject to exceptions, into which argued case of the Petitioner does
not fit. Learned ASC appearing for the answering OPs resists the petition
contending that the very entry of Petitioner was not legally permissible; the
four conditions mentioned in the appointment order dated 13.11.1991 have
not been complied with, though twice recruitment was undertaken;
howsoever long a service may continue, the pollution at the entry level is
not wiped out; even otherwise in the light of State of Karnataka v. Uma
Devi, (2006) 4 SCC 1, petitioner cannot be granted any relief. Having so
contended, he seeks dismissal of the petition.
4. Having heard learned counsel for the parties and having perused the
petition papers, this Court is inclined to grant indulgence in the matter as
under and for the following reasons:
4.1. The Petitioner gained entry to the public service vide order dated
13.11.1991 and that, he has been continuing without any interruption.
Further that there is no complaint whatsoever against him in the matter of
employment, is apparent from the record. The law relating to regularization
of services commencing from the famous Daily Wager's cases, namely,
The Dharwad Distt. P.W.D. Literate v. State of Karnataka & Ors., AIR
1990 SC 883 to Uma Devi supra and therefore to State of Karnataka v.
M.L. Kesari, AIR 2010 SC 2587, is well settled. If the entry is illegal, no
relief can be granted to the employee, is true. However, this is not a case of
illegal entry at all. Secondly, whatever irregularity the entry was arguably
suffering from, would wither away by the long lapse of time. An argument
to the contrary would amount, to put it metaphorically, digging the grave
with no purpose.
4.2. In more or less similar fact matrix, a Division Bench of this Court,
having surveyed the law relating to regularization, has granted relief to
employees of the kind in Bijay Kumar Samal & Ors. supra and therefore,
Petitioner cannot be denied the similar relief. In the said decision,
paragraphs 6.2 & 6.3 read as under:
"6.2. The vehement submission of learned panel counsel appearing
for the Board that the very initial entry of the respondents to the
service is illegal and therefore no regularization/absorption would
have been granted in terms of Umadevi supra cannot be acceded to
and easons for this are many: Firstly, Section 9(1) of the Act says
"The Board may appoint such officers and employees as it considers
necessary for the efficient performance of its duties and discharge of
its functions against posts sanctioned by the State Government."
Secondly, it is specifically admitted in the statement of objections filed
in the writ petitions that the Board has engaged the services of these
respondents.... Therefore, the ratio in Umadevi supra would not come
to the aid of Appellant Board, initial entry being absolutely legal.
6.3. Illegality is one thing and irregularity is another, even if
arguably they are not polls asunder. At times, the difference between
these two, sages of law like Fedric Pollock say, more often than not, is
in degrees & not in kind. In a constitutionally ordained Welfare State
its instrumentality like the Board cannot be permitted to contend that
although it made the appointments in question, the same are marred
by illegality, especially when they are not, for the reasons already
discussed above. Here are employees who have been shading their
sweat, if not blood, to the soil in the discharge of their functions for
more than twenty five years. Firstly, a perpetrator of illegality, if at
all these appointments are of the kind, cannot be permitted to take the
advantage of its own illegal act. Secondly, whatever arguable
illegality at the entry level of employment would diminish year by year
and become nil at least after a quarter century, as a concession to the
shortness of human life. One cannot dig the grave profitably, the dead
having gone with the winds long ago once for all. Therefore, the entry
of these respondents is at the most can be termed as irregular and
therefore Umadevi cannot be chanted like mantra to defeat their
legitimate expectation, if not right."
4.3. Learned counsel for the Petitioner is more than justified in
contending that denial of regularization vide order dated 03.06.2024 issued
by OP No.2 at Annexure-10 is bereft of law and justice. The latest position
of law, as repeatedly declared by the Apex Court post Uma Devi supra in
the light of M.L Kesari supra and Dharam Singh v. State of U. P., 2025
INSC 998, shows that the impugned order runs counter to Regularization
Jurisprudence. The four conditions stipulated in order dated 13.11.1991 at
Annexure-1 are not invokable, because three of them depend upon the first
condition largely. The invocation of said first condition is permissible only
if OPs had undertaken the recruitment drive within a year or two after
petitioner was engaged; such a contingent thing having not happened,
learned ASC is not right in pressing into service the said conditions, when
such recruitments were undertaken only in 2010-11.
4.4. The last contention of learned ASC that the recruitment process
twice happened and the Petitioner did not qualify, would not much come to
the rescue of OPs, inasmuch as even after the said incident Petitioner has
been continued in service for more than a decade, total length of service
being more than three decades. Had the condition not been complied with,
he could have been told to go home as has been stipulated at Annexure-1
itself. That has not been done and that itself shows that the Petitioner is
working against the regular vacancy and his services are eminently needed.
In the above circumstances, this petition is allowed; a Writ of
Certiorari issues quashing the impugned order dated 03.06.2024 at
Annexure-10; a Writ of Mandamus issues to OP Nos.2 & 3 to regularize
the services of Petitioner with effect from the date the second recruitment
process was undertaken, and pay him all consequential benefits within a
period of three months and report compliance to the Registrar General of
this Court.
Now, no costs.
Web copy of this judgment to be acted upon by all concerned.
Dixit Krishna Shripad,
Judge
Orissa High Court, Cuttack
The 4th day of September, 2025/Madhusmita
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Sep-2025 11:24:23
