Orissa High Court
Gopal Sahu vs State Of Odisha & Ors. .... Opposite ... on 9 September, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.12877 of 2022
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Gopal Sahu .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. R. Das Nayak, Advocate
For Opp. Parties : Mr. M.R. Mohanty
Addl. Govt. Advocate
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 09.09.2025 and Date of Judgment: 09.09.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. R. Das Nayak, learned counsel appearing for the
Petitioner and Mr. M.R. Mohanty, learned Addl. Govt. Advocate
appearing for the Opp. Parties.
// 2 //
3. The present writ petition has been filed inter alia challenging order
dtd.31.12.2021 so passed by Opp. Party No. 1 under Annexure-1.
Vide the said order 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 DLR w.e.f.01.03.1993 in the
establishment of Opp. Party No. 4. While so continuing
w.e.f.01.03.1993, when he was disengaged w.e.f.01.02.1999, the
matter was carried to the learned Labour Court, Sambalpur in I.D.
Case No. 43 of 2002. Learned Labour Court vide award
dtd.31.07.2009 under Annexure-2, held the retrenchment of the
Petitioner w.e.f.01.02.1999 as illegal and directed for his
reinstatement. Pursuant to the said order and in terms of order
dtd.15.04.2010, Petitioner rejoined on 19.04.2010 as a DLR vide
Annexure-3.
4.1. It is contended that since Petitioner is continuing as a DLR
w.e.f.01.03.1993 and the order of disengagement passed on
01.02.1999 was interfered with by the Labour Court by holding such
disengagement as illegal, it is to be held that Petitioner is in
continuous employment as a DLR w.e.f.01.03.1993. However, on the
// 3 //
face of such continuance, when Petitioner was not regularized,
Petitioner approached this Court by filing W.P.C.(OAC) No. 43 of
2016. This Court vide order dtd.30.07.2021 under Annexure-10
disposed of the writ petition by directing the Opp. Parties to consider
the claim of the Petitioner to get the benefit of regularization in terms
of the decision of the Apex Court in the case of State of Karnataka
vs. Uma Devi, (2006) 4 SCC-1, State of Karnatak vs. M.L. Keshari,
(2010) 9 SCC 247 and Amarkant Rai vs. State of Bihar & Others,
2015(8) SCC 265.
4.2. However, without proper appreciation of the same, Petitioner's
claim to get the benefit of regularization was rejected vide the
impugned order dtd.31.12.2021 under Annexure-1, inter alia on the
ground that Petitioner was never engaged as a DLR w.e.f.01.03.1993
and such order of engagement has been issued by the then Executive
Engineer without any proper authority.
4.3. Learned counsel appearing for the Petitioner contended that while
dealing with the retrenchment in I.D. Case No. 43 of 2002, learned
Labour Court gave a finding that Petitioner is continuing as a DLR
w.e.f.01.03.1993. The award so passed was never assailed and instead
was implemented by allowing the Petitioner to rejoin vide order
// 4 //
dtd.15.04.2010, wherein Petitioner rejoined on 19.04.2010. In view of
such clear finding of the Labour Court, the stand taken by Opp. Party
No. 1 that Petitioner was never engaged as a DLR w.e.f.01.03.1993
cannot sustain legal scrutiny. Finding of the Labour Court so available
in the award reads as follows:-
"I must say that the second party workman with all preponderance of
probabilities could establish that he was working under the first party
management as D.L.R. continuously from 1.3.1993 to 1.2.1999."
4.4. It is contended that in view of such clear finding of the Labour
Court which was never assailed with its implementation, it is to be
held that the Petitioner is continuing as a DLR w.e.f.01.03.1993 which
is prior to cut-off date fixed by the Finance Department in its
Resolution dtd.15.05.1997. It is accordingly contended that taking
into account his continuance as a DLR w.e.f.01.03.1993 and the
award passed by holding the retrenchment as illegal and engagement
of the Petitioner as a DLR w.e.f.01.03.1993, the ground on which
Petitioner's claim has been rejected vide the impugned order is not
sustainable in the eye of law.
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.,
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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,
Petitioner is eligible to get the benefit of regularization with quashing
of the impugned order.
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
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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
engagement over sanctioned posts where the work is
// 10 //
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
other terminal dues. The revised pension and terminal dues
// 11 //
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."
5. Even though notice of the writ petition has been issued since
02.08.2022, but no counter affidavit has been filed till date. However,
basing on the materials available on record and the stand taken in the
impugned order, learned Addl. Govt. Advocate contended that since
// 12 //
Petitioner has not enclosed any document showing that he was
engaged as DLR w.e.f.01.03.1993, Petitioner's engagement as a DLR
cannot be taken as 01.03.1993 and that it is prior to the cut-off date
i.e.12.04.1993.
5.1. It is contended that pursuant to the order passed by the Labour
Court under Annexure-2, Petitioner was reinstated vide order
dtd.15.04.2010, where he joined on 19.04.2010. Therefore,
Petitioner's date of engagement is to be taken as 19.04.2010 so
reflected in Annexure-3. Since Petitioner is continuing as a DLR
w.e.f.19.04.2010, after the award was implemented and such date of
engagement is much after the cut-off date i.e.12.04.1993, Petitioner is
not eligible and entitled to get the benefit of regularization and his
claim has been rightly rejected.
6. Having heard leaned counsel appearing for the Parties and
considering the submission made, this Court finds that Petitioner
while continuing as a DLR w.e.f.01.03.1993, when he was not
allowed to discharge his duty w.e.f.01.02.1999, he moved the learned
Labour Court in I.D. Case No. 43 of 2002. As found from the award
available under Annexure-2, learned Labour Court while dealing with
the issue, came to a clear finding that Petitioner was engaged as a
// 13 //
DLR w.e.f.01.03.1993. The award so passed was never assailed by the
State Machinery and instead in terms of the said award Petitioner was
reinstated vide order dtd.15.04.2010, where he joined on 19.04.2010.
6.1. In view of such clear finding of the learned Labour Court in its
award under Annexure-2, which was never assailed by the State, it is
the view of this Court that Petitioner was engaged as a DLR
w.e.f.01.03.1993. Since Petitioner's engagement is prior to the cut-off
date so fixed by the Finance Department in its Resolution
dtd.15.05.1997 and Petitioner since 01.03.1993 is continuing as a
DLR, placing reliance on the decisions in the case of Jaggo, Shripal
as well as Dharam Singh as cited (supra), it is the view of this Court
that Petitioner is eligible and entitled to get the benefit of
regularization and the ground on which his claim has been rejected
vide the impugned order dtd.31.12.2021 under Annexure-1 is not
sustainable in the eye of law.
6.2. In view of the same, this Court is inclined to quash order
dtd.31.12.2021 so passed by Opp. Party No. 1 under Annexure-1.
While quashing the said order, this Court directs Opp. Party No. 1 to
regularize the services of the Petitioner with passing of an appropriate
// 14 //
order within a period of three (3) months from the date of receipt of
this order.
7. The writ petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 9th of September, 2025/Sneha
Location: High Court of Orissa, Cuttack
