Orissa High Court
Dr. Amiya Kumar Mohanty vs State Of Odisha & Ors. ..... Opposite ... on 10 September, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17769 of 2024
An application filed under Articles 226 and 227 of the
Constitution of India.
Dr. Amiya Kumar Mohanty ..... Petitioner
Mr. Krishna Chandra
Sahu, Adv.
-versus-
State of Odisha & Ors. ..... Opposite Parties
Mr. Dayanidhi Lenka,
A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of Hearing : 18.07.2025 | Date of Judgment: 10.09.2025
______________________________________________________
A.K. Mohapatra, J. :
1. The abovenamed Petitioner, who has been working as an
Assistant Surgeon and has rendered his service for first 31 years,
has approached this Court by filing the present writ application
under Article 226 of the Constitution of India with a prayer for
issuance of a writ of mandamus to the Opposite Parties to
regularize the service of the Petitioner as a Regular Assistant
Surgeon by taking into consideration his uninterrupted and long
continuance in service for more than 3 decades and to quash the
impugned rejection order dated 06.07.2024 under Annexure-17 to
the writ application. The Petitioner in addition to the prayer for
regularization of his service, has also prayed for an direction to the
Opposite Parties to disburse in his favour all consequential service
and financial benefits admissible to him.
2. The factual background of the Petitioner's case, bereft of
all unnecessary details, is that the Petitioner on completion of his
MBBS course and after obtaining a valid degree was initially
engaged as an Assistant Surgeon on ad-hoc basis w.e.f. 23.12.1992
pursuant to order dated 18.12.1992 at Annexure-1. While the
Petitioner was continuing in service, the Govt. of Odisha, vide
notification dated 29.09.1993, regularised the services of several
similarly situated ad-hoc Assistant Surgeons on the basis of a
validation act w.e.f. 11.05.1993.
3. While the Petitioner was serving as an Assistant Surgeon,
the Opposite Parties opened a service book of the Petitioner. They
also opened GPF and GIS account of the Petitioner and the
petitioner was extended with the benefit of pay fixation and he
was being extended with the benefit of annual increment from
time to time as was being sanctioned by the Govt. in favour of the
Petitioner. While this was the position, the Govt. of Odisha sought
for service particulars of Ad-hoc/ Contractual Assistant Surgeons
and Dental Surgeons who have already completed five years of
continuous service under the State Govt. vide their letter dated
10.04.2013. In reply to the aforesaid letter, the Opposite Party
No.2 vide its letter No.11619, dtd.24.04.2013 has sent a list of 20
Ad-hoc/ Contractual Assistant Surgeons and Dental Surgeons to
the different CDMOs under whom the abovenoted 20 listed
doctors were discharging their duties with a specific request for
verification of their service particulars, particularly with regard to
5 years of continuous service by such unlisted doctors for
regularization of their service. The said list of doctors includes the
name of the Petitioner at Sl. No.3 as per Annexure-6.
4. Pursuant to the letter of the Opposite Party No.2 dated
24.04.2013, the CDMO, Mayurbhanj vide letter No.3319 dated
14.05.2013 has sent the details of service particulars of the
Petitioner on 14.05.2013, at Annexure-7 to the writ application.
On receipt of such detailed service particulars of the enlisted
doctors from different CDMOs, the Govt. of Odisha vide
resolution dated 16.01.2015 has regularized the service of 8
contractual Dental Surgeons with the concurrence of Law Dept.
and, as such, the abovenoted 8 doctors were brought over to the
regular establishment with a regular scale of pay as per Annexure-
8. However, the case of the Petitioner, who had completed of 22
years of service by then, was not considered and he was not
extended with the benefit of regularization of his service.
5. Since the case of the Petitioner was not considered by the
Opposite Parties for regularization of his service, the Petitioner
approached the Opposite Parties by submitting a series of
representation to the Govt. through proper channel with a prayer
for regularization of his service in the same manner as has been
done in the case of similarly situated ad-hoc/ contractual Assistant
Surgeons as well as Dental Surgeons as per the Annexure-10
series. Although such representations were filed on 28.06.2019,
05.01.2021, 13.07.2021 and 21.04.2023, however they are still
pending before the Opposite Party No.1 for consideration. In the
meanwhile, the Opposite Party No.3 vide letters dated 23.09.2019,
06.01.2020 and 22.12.2021 furnished the service particulars along
with details of place of posting of the Petitioner to the Govt. under
Annexure-11 series. The Opposite Party No.2 vide his letter dated
31.01.2022 has directed the Opposite Party No.3 to furnish the
copies of the letter/ order in connection with regularization of
service of the Petitioner. Pursuant to the aforesaid letter of the
Opposite Party No.2 dated 31.01.2022, the Opposite Party No.3
vide letter No.859, dtd.08.02.2022 has furnished the detailed
service particulars along with all the letters/ orders in support of
the Petitioner's case for consideration by the appropriate authority
at the Govt. level as per Annexure-13 to the writ application.
6. Finally, while the Petitioner was continuing on contractual
basis and while his case was still under consideration of the Govt.,
the Govt. of Odisha vide notification No.1476 dated 19.01.2023
published an order thereby regularizing the services of 5 nos. of
ad-hoc/ Contractual Dental Surgeons as per Annexure-14 to the
writ application. Unfortunately, the case of the Petitioner was also
not considered this time. Being aggrieved by such inaction of the
Opposite Parties in regularizing the service of the Petitioner, and
finding no other alternative, the Petitioner initially approached this
Court by filing W.P.(C) No.36924 of 2023. The said Writ
application was disposed of on 17.11.2023 thereby granting liberty
to the petitioner to file a fresh representation before the Opposite
Party No.1 and the Opposite Party No.1 was directed to consider
the case of the Petitioner keeping in view the fact that similarly
situated doctors appointed on contractual basis have been
regularized in the meantime in view of the Resolution dated
16.01.2015 of the Health and Family Welfare Dept., Govt. of
Odisha. After disposal of the earlier writ application, although the
Petitioner approached the Opposite Party No.1 by filing a detailed
representation on 24.11.2023 at Annexure-16, however, the same
has been rejected by the Opposite Party No.1 vide order dated
06.04.2024 as per Annexure-17 to the writ application. Being
aggrieved by such rejection of his prayer vide order dated
06.07.2024 at Annexure-17, the Petitioner has once again
approached this Court by filing the present writ application.
7. A detailed counter affidavit has been filed on behalf of the
Opposite Party No.1 sworn by the Additional Secretary to Govt.,
Health and Family Welfare Dept. In the counter affidavit it has
been stated on behalf of the Opposite Party No.1 that the
representation of the Petitioner dated 24.11.2023 was considered
by the Opposite Party No.1 pursuant to the order dated 17.11.2023
passed in W.P.(C) No.36924 of 2023. After due consideration and
careful examination, the prayer made by the Petitioner in his
representation dated 24.11.2023 has been rejected by a speaking
order of the H&FW Dept. dated 06.07.2024.
8. In the counter affidavit, the Opposite Party No.1 has not
disputed the initial engagement of the Petitioner as an Assistant
Surgeon on ad-hoc basis vide department notification dated
18.12.1992 and, accordingly, the Petitioner jointed at PHC (N)
Mankadakenda under CHC Khunta, Dist. Mayurbhanj on
23.12.1992. Initially the Petitioner worked on ad-hoc basis up to
31.12.1999. Thereafter, he worked on contractual basis. It has
been shown that there was a break in service on 01.01.2000 and
from 31.03.2001 to 20.09.2001. In the counter affidavit it has been
specifically admitted that services of 195 Assistant Surgeons
appointed on ad-hoc basis by the Government during the year
1983 to 1988 without the recommendation of OPSC have been
regularized w.e.f. 04.05.1993 by virtue of a Validation Act, 1993.
It has been stated that since the Petitioner was not serving during
the aforesaid period, he will not be covered under the Validation
Act, 1993 and, as such, the Petitioner was not extended the benefit
of regularization of his service as an Assistant Surgeon. Moreover,
no subsequent Validation Act has ever been notified and that the
appointment OMHS cadre can be made through OPSC only.
9. With regard to regularization of 8 contractual Dental
Surgeons in the year 2015, it has been stated in the counter
affidavit that the same has been made vide a Department
Resolution dated 16.01.2015 with the concurrence of GA & PG
Department and Law Department and on the basis of the fact that
in absence of specific Rules governing the recruitment to the post
of Dental Surgeon, the procedure adopted for recruitment of those
8 candidates against the contractual post can never be said to have
fallen short of legality. Similarly, the service of 5 Dental
Surgeons, who were engaged on contractual basis by different
CDM & PHOs, have been regularized vide notification dated
09.01.2023 with the concurrence of GA&PG Department and Law
Department.
10. So far the regularization of service of the Petitioner is
concerned, it has been stated that the Finance Department has
observed that the Validation Act would be applicable where
appointment has not been made in violation of recruitment
procedure. Since, in the instant case, the Petitioner has been
appointed on contractual basis in violation of the existing rules, his
case was not considered by the Opposite Party No.1. Moreover,
emphasis has been laid in the counter affidavit on the observation
of the Finance Dept. regarding condonation of break period, i.e.,
although the break period between two regular services can be
condoned, however, the same will not apply to contractual service.
11. In the counter affidavit, the Opposite Parties have referred
to the judgment of the Hon'ble Supreme Court in the case of
Satchidananda Misra v. State of Orissa and Others reported in
2004 INSC 531, wherein the Hon'ble Supreme Court has upheld
the judgment of this Court declaring the Section 3 of the
Validation Act as ultra vires to the Constitution. It was held by the
Hon'ble Apex Court that the attempt to regularize the
appointments made in violation of the Recruitment Rules, 1979 by
taking reserve to a Validation Act is illegal and invalid in law. As
such, the regularization of service in view of the Section 3(1) of
the Validation Act was held to be invalid and such ad-hoc
appointments were not allowed to be legally regularized by the
legislative measure. On the aforesaid ground, it has been stated in
the counter affidavit that the prayer made by the Petitioner in the
Writ application is devoid of merit.
12. A rejoinder affidavit has also been filed at the instance of
the Petitioner. In the rejoinder affidavit it has been stated that the
Opposite Parties have not disputed the factual backdrop as pleaded
in the writ application. Further, the rejoinder affidavit clarifies that
by the time the service of 195 Assistant Surgeons, who were
appointed on ad-hoc basis, were regularized by virtue of the
Validation Act, 1993, the Petitioner was already in service on
being appointed on ad-hoc basis and that the Petitioner was
similarly placed with the abovenoted 195 Assistant Surgeons.
Thus, it was pleaded that the Petitioner be treated at par with those
195 Assistant Surgeons whose service was regularized
subsequently. Further, emphasis has been laid on the fact that the
case of the Petitioner was being recommended and his service
particulars were being sent to the Govt. for regularization.
However, the government did not take any step to regularize the
Petitioner either in the cadre post or in an ex-cadre post. Thus, it
has been stated that the prayer of the Petitioner cannot be denied
after the Petitioner has rendered service for more than 3 decades
on the ground that the initial appointment of the Petitioner was not
with the concurrence of the OPSC. Further, reference has also
been made to the para-9 of the Counter Affidavit wherein the
Opposite Party No.1 has admitted that with the concurrence of the
GA&PG Dept. and Law Dept., Govt. of Odisha, some Assistant
Surgeons were regularized in service subsequent to the
regularization pursuant to the Validation Act of the year 1993. It
has been stated that the Assistant Dental Surgeons whose services
were regularized subsequently are juniors to the Petitioner and had
served only for 8 years. In fact, one of such candidates had served
only 23 days on contractual service. So far the Petitioner is
concerned, it has been mentioned that they he has served for more
than 3 decades. Therefore, it was alleged that the conduct of the
Opposite Parties is highly discriminatory and, as such,
unsustainable in law.
13. In the rejoinder affidavit, the Petitioner has seriously
questioned the submission of the Opposite Party No.1 with regard
to the break in service. In the rejoinder affidavit an emphatic stand
has been taken by the Petitioner that there was no break in service
as the Petitioner was discharging his duties continuously for over 3
decades, at times with an artificial break of one day. With regard
to the judgment referred by the Opposite Party No.1 in its Counter
Affidavit, the Rejoinder Affidavit of the Petitioner reveals that the
decision in question is based on a set of facts which can be clearly
distinguished from the facts of the present case. While further
elaborating, it has been stated that in the reported judgment of the
Hon'ble Supreme Court the appointments were made in violation
of the Rules, 1979, whereas, in the instant case the Petitioner has
been appointed as per the provisions of State Medical & Health
Services Cadre though initially on ad-hoc basis, subsequently on
contractual basis w.e.f. 02.01.2000. It has also been stated that the
service of the Petitioner could very well be regularized by granting
relaxation under the existing rules and by treating the Petitioner as
an ex-cadre employee. In the rejoinder affidavit it has been
emphasized that many employees of the State Government, who
had worked continuously for a period of 6 years, have been
regularized in service. In the aforesaid context, a reference has
also been made to the judgment of the Hon'ble Supreme Court in
the case of Jaggo v. Union of India & Ors., decided in SLP(C)
No.5580 of 2024 vide judgment dated 20.12.2024 as well as in
Shripal & Anr. v. Nagar Nigam, Ghaziabad, decided in Civil
Appeal No.8157 of 2024 vide judgment dated 31.01.2025.
14. Heard Sri K.C. Sahu, learned counsel for the Petitioner as
well as Sri D. Lenka, learned Additional Govt. Advocate for the
State-Opposite Parties. Perused the Writ application as well as the
documents filed along with the Writ application marked as
Annexures. Also perused the counter affidavit and the rejoinder
affidavit thereto filed by the Petitioner.
15. Sri K.C. Sahu, learned counsel for the Petitioner at the
outset argued that so far the factual aspect of the present Writ
application is concerned, the same has not been substantially
disputed by the Opposite Parties. He further contended that the
Petitioner was initially appointed as an Assistant Surgeon on ad-
hoc basis on 23.12.1992 as per the order under Annexure-1 and
continued as such till he was engaged on contractual basis w.e.f.
01.01.2000. Learned counsel for the Petitioner further contended
that while the Petitioner was continuing in service, the Opposite
Parties extended the benefit of scale of pay with periodical annual
increments. Moreover, the service book of the Petitioner was
opened and he was also extended with the benefit of GPF and GIS
by opening such accounts in favour of the Petitioner. It was also
contended that the Petitioner was discharging duties at par with the
regular Assistant Surgeons i.e. no distinction can be drawn
between the service rendered by the Petitioner either on ad-hoc or
on contractual basis with that of the service rendered by the
Assistant Surgeons whose services have been regularized.
16. Learned counsel for the Petitioner, in course of his
argument, further contended that while the Petitioner was
continuing in service on contractual basis, the Govt. of Odisha
considered the case of the petitioner and, accordingly, the service
particulars were sought for on 10.04.2013 along with many
similarly situated doctors working under the government.
Accordingly, 20 names were short-listed including that of some
Dental Surgeons. However, while regularizing the service of
Assistant Surgeons Dental on completion of 5 years of service
vide Government Resolution dated 16.01.2015, i.e., cases of 8 nos.
of Assistant Dental Surgeons (contractual), the service of the
Petitioner was never considered for regularization. He further laid
emphasis on the basis of the fact while regularizing the service of
8 Assistant Surgeons Dental on the basis of the criteria that they
had completed 5 years of service in the year 2015, the Opposite
parties did not consider the case of the Petitioner who had
completed more than 2 decades of service as Assistant Surgeon.
Although the Petitioner brought the aforesaid fact to the notice of
the Opposite Party No.1 by filing several representations,
however, such grievance of the Petitioner was never considered by
the Opposite Party No.1. Emphasis was also laid on the fact that
pursuant to subsequent letters of the government, the Opposite
Party No.3 furnished the service details of the Petitioner.
However, the Opposite Parties regularized service of 5 Assistant
Surgeons (Dental) vide notification dated 19.01.2023, once again
the case of the Petitioner for regularization of his service was
conveniently ignored by the Opposite Parties which amounts to
gross discrimination and, as such, is violative of the principle
enshrined in Article 14 & 16 of the Constitution of India.
Emphasis laws also laid on the fact that some of the Assistant
Surgeons (Dental) whose services were regularized, had served for
only 23 days before regularization of their service as per
Annexure-8 to the Writ application.
17. Mr. Sahu, learned counsel for the Petitioner further
contended that pursuant to order dated 17.11.2023 in W.P.(C)
No.36924 of 2023 although the Petitioner submitted a detailed
representation on 24.11.2023 with a prayer for regularization of
his service on the ground that he had served for more than 3
decades uninterruptedly, the Opposite Party No.1 without
considering the representation of the petitioner in its proper
prospective and without due regard to the order passed by this
Court, rejected the representation vide order dated 06.07.2024 at
Annexure-17 to the writ application. He further assailed the order
of Annexure-17 on the ground that the same is illegal, erroneous
and highly discriminatory.
18. In reply to the stand taken by the Opposite Party No.1 in
its counter affidavit, learned counsel for the Petitioner
emphatically argued that the Opposite Party No.1 has not disputed
the factual aspect of the matter. However, while considering the
prayer of the Petitioner for regularization of his service on the
ground that the Petitioner has successfully rendered service
uninterruptedly for more than 3 decades, the Opposite Party No.1
has failed to apply the correct law as has been laid down by this
Court as well as the Hon'ble Supreme Court of India. He would
also argue that by the time the Validation Act, 1993 came into
force, the Petitioner was already in service. As such, the Petitioner
is squarely covered by the Validation Act, 1993. Thus, it was
argued that the Opposite Parties while regularizing the service of
195 Surgeons pursuant to the Validation Act, 1993 have failed to
consider the case of the Petitioner under the said validation act
and, as such, the Petitioner has been grossly discriminated against.
He further forcibly argued that in the event the Petitioner was
found not to be covered under the Validation Act, 1993, the
Opposite Parties by taking note of the long and uninterrupted
service rendered by the Petitioner would have relaxed the OMHS
cadre rule and regularized the service of the Petitioner, or, they
could have simply regularized the service of the Petitioner, against
an ex-cadre post, on completion of 10 years of service by taking
into consideration the length of the Petitioner's service, by
applying the ratio laid down by this Court as well as the Hon'ble
Supreme Court.
19. Mr. K.C. Sahu, learned counsel for the Petitioner, drawing
attention to the orders under Annexures-8 and 14 to the writ
application, contended that in the year 2015 as well as in the year
2023, service of some Dental Surgeons were regularized with the
concurrence of the G.A&P.G. Dept. and Law Dept., Govt. of
Odisha. He further contended that although by then the Petitioner
was eligible for regularization neither any such consent was
sought for from the G.A. & P.G. Dept. and Law Dept. of the Govt.
of Odisha and the case of the Petitioner was never considered for
regularization of his service. Such conduct clearly amounts to
discrimination against the Petitioner by the State-Opposite Parties.
He further argued that the Opposite Parties could not adopt two
different set of yardsticks in respect of one category of employees
i.e. Assistant Surgeons working under the Govt. of Odisha. Thus,
it was argued that such conduct of the Opposite Parties is highly
illegal, arbitrary and discriminatory in nature and, as such, the
same is unsustainable in law.
20. With regard to the break in service as alleged by the State-
Opposite Parties, learned counsel for the Petitioner submitted that
such a ground taken by the Opposite Parties in the Counter
affidavit is wholly erroneous. Inasmuch as the Petitioner was
appointed in the State Medical & Health Services Cadre on ad-hoc
basis and, thereafter, the same was being extended from time to
time. The aforesaid fact has also been admitted in the Counter
affidavit by the Opposite Parties. Thus, it was argued that even if it
is assumed for the sake of argument that there was a break of one
or two days here and there, the same can very well be construed to
be an artificial break created by the Opposite Parties to deny the
legitimate claim of the Petitioner for regularization of his service.
With regard to the Validation Act, 1993, learned counsel for the
Petitioner contended that there is no quarrel with regard to the
proposition of law laid down by this Court which had attained
finality after confirmation of the judgment rendered by this Court
by the Hon'ble Supreme Court of India. He further argued that the
service of the Petitioner was never regularized under the
Validation Act, 1993. The case of the Petitioner is that he was
appointed initially on ad-hoc basis, thereafter on contractual basis
in State Medical & Health Services Cadre. In the said context, it
was argued that on completion of 6 years of continuous service,
the service of the Petitioner should have been regularized at par
with the principle which is being adopted by the State Government
in every other department for regularization of the service of ad-
hoc/ contractual employees.
21. With regard to the regularization of the service of the
Petitioner on the basis of the fact that the Petitioner has rendered
his service uninterruptedly for more than 3 decades, learned
counsel for the Petitioner referred to the judgment of the Hon'ble
Supreme Court of India in Secretary, State of Karnataka & Ors.
v. Uma Devi & Ors. reported in AIR 2006 SC 1806; State of
Karnataka & Ors. v. M.L. Keshari & Ors. reported in AIR 2010
SC 2587. He has also relied upon the latest judgment of the
Hon'ble Supreme Court in Jaggo v. Union of India & Ors.,
decided in SLP(C) No.5580 of 2024 vide judgment dated
20.12.2024 as well as in Shripal & Anr. v. Nagar Nigam,
Ghaziabad, decided in Civil Appeal No.8157 of 2024 vide
judgment dated 31.01.2025 as well as the judgment of this bench
in Sitaram Behera v. State of Odisha & Ors. (in W.P.(C) No.8236
of 2024 decided vide judgment dated 16.05.2025).
22. Learned Addl. Govt. Advocate on the other hand
contended that pursuant to the earlier order passed by this Court in
W.P.(C) No.36924 of 2023, the Petitioner submitted a detailed
representation to the Opposite Party No.1 on 24.11.2023 at
Annexure-16 to the writ application. Learned Addl. Govt.
Advocate further submitted that the Opposite Party No.1 vide
order No.16926 dated 06.07.2024 at Annexure-17 rejected the
prayer of the Petitioner by passing a speaking and reasoned order.
Referring to order dated 06.07.2024 at Annexure-17, learned Addl.
Govt. Advocate further submitted that the case of the Petitioner
was duly considered on the basis of the factual background of the
Petitioner's case. On close scrutiny the Opposite Party No.1 found
that the Petitioner was not serving during the period in respect of
which the Validation Act, 1993 was enacted. Moreover, no
Validation Act has been enacted to regularize the service of
Assistant Surgeons working on ad-hoc basis against the post of
OMHS Cadre and that such post are being filled up regularly on
the recommendation of the Odisha Public Service Commission.
23. Learned Addl. Govt. Advocate, in reply to the Petitioner's
allegation that some of the Assistant Surgeons have been
regularized in the meantime in the year 2015 as well as in the year
2023, contended that the regularization of 8 contractual Dental
Surgeons has been made vide Resolution dated 16.01.2015 with
the concurrence of the GA & PG Dept. and Law Dept. and, that
the same is based on the fact that there are no specific rules
governing the recruitment to the post of Dental Surgeon. Thus, the
Opposite Parties have accepted the fact that in the absence of any
recruitment rules the appointment of Dental Surgeon, although on
ad-hoc basis, cannot be construed to have fallen short of legality.
By adopting the same analogy 5 posts of Dental Surgeons were
regularized vide notification dated 09.01.2023 with the
concurrence of the GA & PG Dept. and Law Dept. Learned
counsel for the State further emphasized that in case of
regularization of the Petitioner's service, the Finance Dept. has
observed that the Validation Act is applicable to those cases where
appointment has not been made in violation of recruitment
procedure and that in the instant case, the Doctor has been
appointed on contractual basis in violation of the existing rules. In
addition to the above opinion, the Finance Dept., Govt. of Odisha
has further observed that condonation of break period will arise
between two regular services and not between two contractual
services. Thus, the regularization of the services of the Petitioner
could not be materialized. On the aforesaid ground, learned Addl.
Govt. Advocate contended that the direction of this Court in the
earlier writ application having been duly complied with by the
Opposite Party No.1 and that the Petitioner having not found to be
eligible for regularization of his service, the Opposite Party No.1
has not committed any illegality in rejecting his representation
vide order dated 06.07.2024 at Annexure-17. In such view of the
matter, learned Addl. Govt. Advocate further contended that the
present writ application being devoid of merit, is liable to be
dismissed.
24. Having heard the learned counsels appearing for the
parties, on a careful analysis of their submissions, further taking
note of the pleadings of the respective parties as well as the
documents filed from both sides, this Court is of the considered
view that so far as the factual background of the Writ application
is concerned, there is not much of a difference between the version
forwarded by both the sides. Thus, the admitted fact is that the
Petitioner was initially appointed as Assistant Surgeon on ad-hoc
basis vide notification dated 18.12.1992 and, accordingly, he was
posted at PHC (N) Mankadakenda under CHC Khunta, Dist.
Mayurbhanj. The Petitioner worked there as an Ad-hoc Assistant
Surgeon w.e.f. 23.12.1992 to 31.12.1999. Thereafter, the
Petitioner was engaged on contractual basis w.e.f. 02.01.2000 till
the present date with a break in service on 01.01.2000 and another
from 31.03.2001 to 20.09.2001. It is also a fact that the case of the
Petitioner is not covered under the Validation Act, 1993. Even
assuming that the case of the Petitioner is covered under the 1993
Validation Act, the Petitioner would not be benefited much as the
said Validation Act has been held to be ultra vires by this Court,
which was eventually affirmed by the Hon'ble Apex court. Now,
therefore, the questions that arise before this Court for
adjudication are, firstly, whether the decision taken by the
Opposite Party No.1 vide order dated 06.07.2024 at Annexure-1 is
valid or not? Secondly, whether the service of the Petitioner could
be regularized taking into consideration the fact that he had
rendered more than 3 decades of service as an Assistant Surgeon?
Thirdly, whether the Petitioner is entitled to consequential,
financial and service benefits?
25. With regard to the first question that has been formulated
by this Court, this Court observes that the same is inter-connected
with the question No.2 formulated by this Court i.e. in the event
this Court holds that the service of the Petitioner should have
regularized as per law and the judgment of this Court as well as
the Hon'ble Apex Court, then obviously the impugned order dated
06.07.2024 would fall apart and, as a necessary corollary, the
impugned order at Annexure-17 is to be quashed.
26. As has been stated in the preceding paragraphs. there is not
much dispute with regard to the initial appointment of the
petitioner on ad-hoc basis as an Assistant Surgeon. The document
at Annexure-1 to the Writ application, which is a notification of
the Govt. of Odisha, H & FW Deptt. dated 18.12.1992, reveals
that the Petitioner was appointed as an Assistant Surgeon in the
State Medical & Health Services Cadre on ad-hoc basis for a
period of 6 months or till the recommendation of the OPSC for
appointment of Regular Assistant Surgeon is received. Although
the initial appointment order reveals that such appointment was
temporary and terminable at any time without prior notice. On the
basis of the aforesaid notification of the Government, the
Petitioner joined in government service. It is also evident from
record that the Petitioner continued in his service, initially on ad-
hoc basis, thereafter on contractual basis w.e.f. 02.01.2000 till now
as an Assistant Surgeon and, that he has been discharging his
duties for more than 3 decades. The record further reveals that
twice attempts were made by the State-Opposite Parties to
consider the case of the Petitioner for regularization of his service
along with similarly situated other doctors. Such facts have been
discussed elaborately in the body of the judgment. Therefore, the
same need not be repeated here again. On examination, the
disputed facts reveal that although the recommendations were
sought for from the government seeking service particulars of
doctors, including the present Petitioner for regularization of their
service of Dental Surgeons, the case of the petitioner was never
considered for regularization. Although the Petitioner approached
the Opposite parties on several occasions by filing representations,
the same was not attended to by the Opposite Parties for which the
Petitioner was constrained to approach this Court earlier by filing
W.P.(C) No.36924 of 2023 which was disposed of by this Bench
only on 17.11.2023 with a specific direction to the Opposite Party
No.1 to consider the case of the Petitioner for regularization.
Although the Petitioner approached the Opposite Party No.1 with
a copy of order dated 17.11.2023, the Opposite Party No.1 rejected
the prayer of the Petitioner vide order dated 06.07.2024 at
Annexure-17 to the writ application. The impugned order
No.16926 dated 06.07.2024 reveals that the claim of the Petitioner
was rejected on the following grounds:-
I) That the Petitioner is not covered under the Validation Act,
1993 as he was not appointed in between 1982 to 1988 with the
recommendation of the OPSC.
II) The Petitioner was not serving during the period for which the
Validation Act, 1993 was enacted.
III) Regularization of 8 contractual Dental Surgeons in the year,
2015, has been made vide Resolution dated 16.01.2015 with the
concurrence of the GA&PG Dept. and Law Dept. and on the basis
of the fact that no specific rule governs the recruitment to the post
of Dental Surgeon. Similar analogy was adopted while
regularizing the service of 5 Dental Surgeons vide notification
dated 09.01.2023.
IV) Finally, in view of the observation of the Finance Dept. that
the Validation Act is applicable in a case where appointment has
been made in violation of the recruitment procedure and, in the
instant case, the appointment has been made in violation of the
existing rules.
V) Lastly, the break period in service cannot be condoned as the
same is permissible only in case of the break that arises between
two regular services and not between two contractual services.
27. On a critical analysis of the rejection order dated
06.07.2024 at Annexure-17, this Court observes that the finding
with regard to the fact that the Petitioner is not covered under the
Validation Act, 1993 is correct and the same remains unassailable.
So far as the prayer of the Petitioner for regularization of his
service on the basis of the fact that he was initially appointed on
18.12.1992 and has rendered service as an Assistant Surgeon
uninterruptedly and without any blemish for more than 3 decades,
this Court is of the view that the same has not been appreciated by
the Opposite Party No.1 in its proper prospective. While
considering such prayer, the Opposite Party No.1 was duty bound
take note of the judgments rendered by the Hon'ble Supreme
Court as well as this Court with regard to regularization of service
of govt. employees who have been engaged and continued on ad-
hoc/ contractual basis for several decades.
28. In its entire pleading, the Opposite Parties have nowhere
pleaded that the Petitioner was not eligible for appointment as an
Assistant Surgeon as he was not having requisite degree/
qualification for such appointment. Moreover, nowhere it has been
stated that there was any allegation against the Petitioner while
discharging his duties. Also, it is clearly evident from the pleading
in para-11 of the Counter affidavit that despite the Opposite
Parties being fully aware of the judgment of this Court striking
down the Validation Act, 1993, which was upheld by the Hon'ble
Supreme Court way back in the year 2004, the Opposite Parties
continued to engage the Petitioner in service as an Assistant
Surgeon. It is worthwhile to mention here that the petitioner was
posted in a pre-dominantly tribal area of the state, namely,
Mayurbhanj district of Odisha and he was rendering service as an
Assistant Surgeon to the needy people at far and remote places by
attending the PHCs/ CHCs. Moreover, after the Validation Act,
1993 was struck down, no steps were taken to either terminate the
service of the Petitioner or to engage a doctor in the State Medical
and Health Services Cadre through the OPSC. Records further
reveal that the Petitioner's name was considered and his service
particulars were called for by the government on a couple of
occasions. However, the same was not considered by the State-
Opposite Parties while regularizing the service of persons who are
juniors to the Petitioner by a considerable extent and were working
as Dental Surgeons. In this regard, an instance has been given by
the Petitioner that one such Dental Surgeon, who had rendered
only 23 days of service, has his service regularized and such fact
has not been disputed by the Opposite Parties in their counter
affidavit. Finally, after expiry of more than 3 decades, the prayer
of the Petitioner for regularization was rejected by virtue of the
impugned order dated 06.07.2024 at Annexure-17.
29. The grounds of rejection as indicated in the rejection order
dated 06.07.2024 have been crystalized in the preceding
paragraphs. Such rejection order has not taken into consideration
the long and uninterrupted service rendered by the Petitioner as an
Assistant Surgeon spanning over 3 decades. In the aforesaid
context, this Court would like to refer to the judgments of the
Hon'ble Supreme Court in Umadevi's case (supra). To understand
the true impact of the judgment of the Hon'ble Supreme Court in
Umadevi's case (supra), this Court would like to observe by
taking note of the latest judgment of the Hon'ble Supreme Court
in Jaggo's case (supra) as well as Shripal's case (supra) wherein
it has been categorically held by the Hon'ble Supreme Court that
the State-authorities always use the judgment in Umadevi's case
(supra) as a shield to protect their illegal conduct and unfair
treatment of the workforce and that no explanation is coming forth
from the State side as to whether the one time measure as
suggested in Umadevi's case (supra) has been followed or not.
Ignoring the mandate in Umadevi's case (supra), the State-
authorities are continuing with the practice of contractual or
outsource engagement for a long time spanning over decades.
Such conduct is being defended by citing in Umadevi's case.
30. To understand the true sense of the dictum of the Hon'ble
Supreme Court in Umadevi's case (supra), this Court would like
to refer to the observation of the Hon'ble Supreme Court of India
in its latest judgment in Jaggo's (supra);
"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 and Ors. Etc. Vs. Union of India &
Ors.5, 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 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..."
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."
31. Similarly, in Shripal's case (supra), the Hon'ble Supreme
Court has made the following observations:-
"14. The Respondent Employer places reliance on
Umadevi (supra)2 to contend that daily-wage or
temporary employees cannot claim permanent
absorption in the absence of statutory rules providing
such absorption. However, as frequently reiterated,
Uma Devi itself distinguishes between appointments
that are "illegal" and those that are "irregular", the
latter being eligible for regularization if they meet
certain conditions. More importantly, Uma Devi
cannot serve as a shield to justify exploitative
engagements persisting for years without the Employer
undertaking legitimate recruitment. Given the record
which shows no true contractor-based arrangement
and a consistent need for permanent horticultural staff
the alleged asserted ban on fresh recruitment, though
real, cannot justify indefinite daily-wage status or
continued unfair practices."
32. Another important observation of the Hon'ble Supreme
Court in Jaggo's case (supra) which requires a special mention at
this stage is as follows:-
"16. The appellants' consistent performance over
their long tenures further solidifies their claim for
regularization. At no point during their engagement
did the respondents raise any issues regarding their
competence or performance. On the contrary, their
services were extended repeatedly over the years, and
their remuneration, though minimal, was incrementally
increased which was an implicit acknowledgment of
their satisfactory performance. The respondents'
belated plea of alleged unsatisfactory service appears
to be an afterthought and lacks credibility.
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 ever 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.
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, they contributing to the
overall betterment of labour practices in the country."
33. Reverting to the judgment of the Hon'ble Supreme Court
in Secretary, State of Karnataka Vs. Uma Devi reported in (2006)
4 SCC 1, the Constitution Bench of the Hon'ble Supreme Court of
India while unanimously speaking through Justice P.K.
Balasubramanyan (as he then was) have also taken note of the
cases where the appointments were merely "irregular" and not
"illegal" and, as such, they had provided for a mechanism in para
53 of the judgment which is quoted hereinbelow:-
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa11, R.N.
Nanjundappa12 and B.N. Nagarajan8 and referred to in
para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more
but without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services
of such employees may have to be considered on merits
in the light of the principles settled by this Court in the
cases abovereferred to and in the light of this judgment.
In that context, the Union of India, the State
Governments and their instrumentalities should take
steps to regularise as a one-time measure, the services
of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be
set in motion within six months from this date. We also
clarify that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of
the constitutional requirement and regularising or
making permanent, those not duly appointed as per the
constitutional scheme."
34. Keeping in view the principle laid down by the
Constitution Bench of the Hon'ble Supreme Court of India in
Uma Devi's case (supra), particularly, in para 53, this Court
would now examine the factual background of the present case.
Indisputably, the Petitioner was initially engaged in the year 1992
on ad-hoc basis. Thereafter, he was continuing on contractual
basis w.e.f. 02.01.2000. Initially the recruitment of the Petitioner
was by virtue of a government notification, although the same was
without the concurrence of the OPSC, which is one of the
requirements in the recruitment rules. Thus, at best it can be said
that the initial recruitment of the Petitioner was "irregular" and
was not completely "illegal". Moreover, by the time the judgment
in Uma Devi's case (supra) was delivered on 10.04.2006, the
Petitioner had completed 10 years of service on being appointed
irregularly. Therefore, the case of the Petitioner meets the
requirement of para 53 of the judgment in Umadevi's case (supra)
as he had completed 10 years of service as on the date of the
judgment i.e. 10.04.2006. In furtherance of the direction contained
in para 53, the State-Opposite Parties should have carried out the
exercise of regularization of service of such ad-hoc/ contractual
employees as a one-time measure. However, there is nothing on
record to conclusively prove that any such exercise was ever
carried out by the State-Opposite Parties as a one-time measure.
Additionally, there is no dispute with regard to the fact that the
Petitioner was performing his duties against a sanctioned post and
that the continuance of the Petitioner for more than 3 decades was
without any intervention by any Constitutional Court or Tribunal.
Thus, the principle laid down in para 53 in Umadevi's case (supra)
squarely applies to the instant case of the Petitioner. As such, as a
one-time measure, the case of the Petitioner should have been
considered and he should have been regularized against the post of
Assistant Surgeon. Although records reveal that an attempt was
made in the year 2015 and 2023 by regularizing some of the ad-
hoc Dental Surgeons, the case of the Petitioner was never
considered. Moreover, there is nothing on record that the vacant
post against which the Petitioner was working was ever filled up
by the candidates who were recommended by the Odisha Public
Service Commission.
35. In view of the aforesaid analysis of law, this Court has no
hesitation in coming to a conclusion that the case of the Petitioner
is squarely covered by the direction of the Constitution Bench in
Umadevi's case (supra). Thus, it is further held that the Opposite
Parties have failed to carry out the exercise as directed in para 53
of the Umadevi's case (supra). Therefore, this Court has no
hesitation to hold that the case of the Petitioner should have been
regularized as a one-time measure pursuant to the direction
contained in para 53 of the Umadevi's case (supra).
36. Coming back to the law laid by the Hon'ble Supreme
Court in its recent judgments in Jaggo's case (supra) as well as in
Shripal's case (supra), this Court had an occasion to analyse both
the aforesaid judgments in its pronouncement in Sitaram Behera
Vs. State of Odisha & Ors. bearing W.P.(C) No.8236 of 2024
decided vide judgment dated 16.05.2025. In Sitaram Behera's
case (supra), after taking note of the observation of the Hon'ble
Supreme Court in Jaggo's case (supra) as well as in Shripal's
case (supra) this Court had given a direction for regularization of
service of the Petitioner in the said case.
37. In view of the aforesaid analysis, this Court is of the
considered view that the Opposite Party No.1 has committed an
illegality by rejecting the prayer of the Petitioner vide order dated
06.07.2024 at Annexure-17 to the writ application. Accordingly,
the impugned order dated 06.07.2024 at Annexure-17 is hereby
quashed. Moreover, the grounds on which the prayer for
regularization has been rejected are found to be unsustainable in
law in view the fact that the Petitioner has rendered service
uninterruptedly as an Assistant Surgeon in a remote area of the
State for more than 3 decades. This answers the first two questions
formulated by this Court. With regard to the relief claimed by the
present Petitioner, this Court is of the view that since an exercise
was conducted to consider the case of ad-hoc/ contractual
employees for regularization of their services pursuant to letter
dated 24.04.2013 at Annexure-6 and necessary compliance was
made with the letter of the Director of Health Services, Odisha at
Annexure-6 by the CDMO, Mayurbhanj vide his letter dated
14.05.2013 at Annexure-7 strongly recommending the case of the
Petitioner on the basis of the fact that the Petitioner had rendered
for more than 19 years of service in rural & difficult areas of a
tribal district and at the relevant point of time was continuing as a
Contractual MO at Kostha CHC and while such recommendation
was rejected, the Opposite Parties have regularized the service of 8
persons vide Resolution dated 16.01.2015 at Annexure-8, this
Court is of the view that the case of the Petitioner should have
been considered along with those 8 candidates as per Resolution at
Annexure-8 dated 16.01.2015. Lastly, in order to uphold the ends
of justice, this Court observes that the service of the Petitioner
ought to be regularized against an ex-cadre post w.e.f. 16.01.2015.
Accordingly, a direction is given to the Opposite Party No.1 to
regularize the service of the Petitioner w.e.f. 16.01.2015 in an ex-
cadre post of Assistant Surgeon with all necessary consequential,
financial and service benefits, within a period of three months
from the date of this judgment.
38. With the aforesaid observations/ directions, the writ
application stands allowed. However, there shall be no order as to
cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 10th September, 2025/ Anil/ Jr. Steno
Designation: Junior Stenographer
Location: High Court of Orissa
Date: 10-Sep-2025 18:04:16
