Orissa High Court

Bichitra Kumar Jena vs Union Of India &Ors. .... Opposite Party ... on 10 September, 2025

Author: Sanjeeb K Panigrahi

Bench: Sanjeeb K Panigrahi

                                                               Signature Not Verified
                                                               Digitally Signed
                                                               Signed by: BHABAGRAHI JHANKAR
                                                               Reason: Authentication
                                                               Location: ORISSA HIGH COURT, CUTTACK
                                                               Date: 16-Sep-2025 16:57:44




                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                          RVWPET No.26 of 2025
       (In the matter of an application under Order 47 read with Sections
       114 & 151 of Civil Procedure Code, 1908)


       Bichitra Kumar Jena                        ....                        Petitioner(s)
                                       -versus-
       Union of India &Ors.                       ....          Opposite Party (s)
     Advocates appeared in this case through Hybrid Arrangement Mode:

       For Petitioner(s)           :                   Mr. Sisir Ku. Purohit, Adv.

       For Opposite Party(s)       :                     Mr. M.K. Pradhan, CGC
                                                             Mr. S.P. Dhal, Adv.

                 CORAM:
                 DR. JUSTICE SANJEEB K PANIGRAHI

                      DATE OF HEARING:-31.07.2025
                     DATE OF JUDGMENT: -10.09.2025
     Dr. Sanjeeb K Panigrahi, J.

1. In this RVWPET, the Petitioner seeks review of the judgment dated

22.11.2024 passed in W.P.(C) No.9568 of 2017 dismissing his prayer

therein for a direction to the Opposite Parties to regularize his service

as an Assistant Hydrographic Surveyor wherein he is serving on

contractual basis since January, 2009.

2. The Petitioner now seeks to recall of that decision on the ground that

it was rendered without considering the material submissions and the

relevant law, resulting an error apparent on the face of the record.

Location: ORISSA HIGH COURT, CUTTACK

3. For clarity, the operative portion of the aforesaid judgment under

review is reproduced below:

"5. Having heard the learned counsel for both parties and upon a careful perusal of the documents presented before this Court, it is evident that no sanctioned vacancy exists for the positions of Assistant Hydrographic Surveyor or Assistant Surveyor within the regular establishment of the Paradip Port Trust (PPT). The petitioner, at the time of his initial appointment, was fully cognizant of this fact and executed a bond acknowledging the same.

6. It is a well-settled principle in law that regularization is not an inherent right but a prerogative of the employer, subject to the existence of sanctioned posts and compliance with statutory rules and procedures. The judiciary, while exercising its constitutional mandate, cannot overstep its boundaries to direct the creation of posts or interfere in legitimate policy decisions unless they are demonstrably arbitrary, illegal, or violative of fundamental rights.

7. Substantiating on this stance, the Supreme Court, in the case of State of Rajasthan and Ors. v. DayaLal and Ors.1held that High Courts, while exercising their jurisdiction under Article 226 of the Constitution, shall not direct the regularisation, absorption, or permanent retention of employees unless such employees were appointed through a regular recruitment process that adhered to the relevant rules, conducted in an open and competitive manner, and against duly sanctioned vacant posts.The portion enumerated in para 12 is produced as under:

"The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive

(2011) 2 SCC 429.

Location: ORISSA HIGH COURT, CUTTACK

process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised."

8. Likewise, in the case of State of Gujarat and Ors. v. R.J. Pathan and Ors.2the Apex Court held that employees appointed on a fixed term and fixed salary in a temporary unit established for a specific project cannot claim absorption or regularisation in government service. The High Court lacks jurisdiction to issue directions for their absorption or regularisation, including orders to create supernumerary posts for such purposes. It was held as follows:

"...when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts."

9. Applying the judicial precedents mentioned above to the present case, it is clear that the creation of posts and the regularization of employees are matters that lie solely

2022(5) SCC 394.

Location: ORISSA HIGH COURT, CUTTACK

within the discretion of the employer. In the absence of a sanctioned post, the petitioner has no legal standing to claim regularization, as there is no established entitlement to such a benefit without the requisite sanctioned vacancy.

10. Furthermore, on the issue of outsourcing, the Paradip Port Trust has clarified that contractors are required to comply with statutory obligations, ensuring fair wages and benefits such as ESI and EPF for workers. There is no evidence to suggest that outsourcing will lead to exploitation or is contrary to public policy. On the contrary, it aligns with government guidelines and ensures operational efficiency.

11. In light of these observations, this Court finds no merit in the petitioner's plea for regularization or his challenge to the decision to outsource hydrographic survey work. The principles laid down by the Supreme Court in the aforementioned cases make it abundantly clear that the judiciary cannot direct regularization or interfere in legitimate policy decisions without a clear breach of constitutional or statutory provision.

V. CONCLUSION:

12. For the reasons stated above, this Writ Petition is found to be devoid of merit and is accordingly dismissed and disposed of.

13. Interim order, if any, passed earlier stands vacated."

I. FACTUAL MATRIX OF THE CASE:

4. The brief facts of the case are as follows:

(i) The petitioner has been working as an Assistant Surveyor on

contractual basis since January, 2009. He now seeks regularization of

his service in the post of Assistant Hydrographic Surveyor, claiming

eligibility based on his prolonged service and fulfilment of requisite

qualifications.

Location: ORISSA HIGH COURT, CUTTACK

(ii) However, there is no sanctioned vacancy for the post of Assistant

Hydrographic Surveyor or Assistant Surveyor in the regular

establishment of the Paradip Port Trust (PPT), as stated by the

Opposite Party No.2.

(iii) At the time of his initial appointment, the Petitioner was informed

that the position was purely contractual. He was required to submit a

bond explicitly agreeing that he would not claim regularization or

absorption into PPT's service.

(iv) Despite the contractual nature of his engagement, the Petitioner's

employment has been renewed in six-month terms over the years,

based on the operational requirements of PPT.

(v) While there is one vacant post for Assistant Hydrographic Surveyor, it

is reserved for the candidates belonging to the Scheduled Caste (S.C.)

category. Since the Petitioner belongs to the General Category, he is

ineligible for consideration for this post.

(vi) Moreover, following a cadre restructuring undertaken by the Ministry

of Shipping, the posts of Assistant Hydrographic Surveyor,

Hydrographic Surveyor, and Senior Hydrographic Surveyor have

been abolished and no longer exist in the updated cadre list.

(vii) The Petitioner's concerns have further intensified due to PPT's

decision to outsource the work through private contractors. PPT has

floated an e-tender to engage contractors who will be responsible for

hiring experienced candidates based on job criteria, qualifications, and

the nature of the work. However, PPT has clarified that contractors

Location: ORISSA HIGH COURT, CUTTACK

must comply with statutory regulations, ensuring receipt of wages

and benefits such as ESI, EPF and other entitlements by the workers.

(viii) On 20.04.2017, the Petitioner submitted a formal representation

seeking regularization of his services. However, no action was taken

by the authorities in response to this request.

(ix) Aggrieved by the lack of response and PPT's decision to outsource the

job, the Petitioner had filed the aforesaid Writ Petition. In the Writ

Petition, the Petitioner had sought for a directive from this Court to

regularize his service in the existing vacancy for Assistant

Hydrographic Surveyor and quash the decision to outsource the work

to private contractors. However, this Court vide the judgment dated

22.11.2024 dismissed the prayer of the Petitioner. Hence, this

RVWPET.

II. PETITIONER'S SUBMISSIONS:

5. Learned counsel for the Petitioner(s) earnestly made the following

submissions in support of his contentions:

(a) This Court has committed error in dismissing the Writ Petition as the

impugned judgment has been passed without considering the

material submissions and the discussions of the relevant judgments of

the Supreme Court. Moreover, the impugned judgment has been

passed relying on the Apex Court's judgments which are not relevant

to the facts available on record and without considering the fact of

perennial nature of the job, availability of vacancy etc. These factual

findings are necessary for proper adjudication of the case. This Court

Location: ORISSA HIGH COURT, CUTTACK

even did not refer to its own judgment in the analogous case of

regularization vide judgment dated 29.02.2024 passed in W.P.(C)

No.9366 of 2018 (Jyoti Prakash Das & others-vs-Paradip Port Trust). The

inadvertence might be due to the long pendency of the reserved

judgment without adverting to the written note of submission and the

mentions on the date.

(b) In the judgment of the Supreme Court i.e. State of Punjab-vs-Daya

Lal & others3 relying on which the Writ Petition was dismissed, it was

directed not to regularize the employees not appointed through a

regular recruitment process that adhered to relevant rules, conducted

in an open and competitive manner and against duly sanctioned

vacant post.

(c) In the instant case, there was due advertisement of the

selection/recruitment and a fair selection was made for swimming

test, interview and document verification, eligibility test etc. In the

selection, only 2 candidates were selected and appointed, as per the

then procedures i.e. PPT Employees Recruitment Regulation, 1967

when there was availability of one vacancy as admitted by the

Opposite Parties. Hence, this judgment does not stand as a bar to the

case of the Petitioner.

(d) In the next judgment i.e. State of Gujarat-v-R.J. Pathan4, the

respondents who sought regularization were appointed on a fixed

term and on a fixed salary in a temporary unit which was created for a

(2011) 2 SCC 429 4 2022(5) SCC 394

Location: ORISSA HIGH COURT, CUTTACK

particular project. Hence, direction for regularization of the

respondents who were appointed in temporary unit which was

created for a particular project could not have been given and that too,

by creating supernumerary post. Therefore, this judgment is not

applicable to the case of the present Petitioner as the job in which he

was appointed was a job of permanent nature and it was neither

against any project/scheme based. There was also vacancy of one post

as admitted by the Opposite Parties and it is established on

documents before this Court that the Opposite Parties are always in

need of further such employees for the said job but they want them on

outsourcing basis through contractors, which is against the intention

of any of the judicial decisions rendered by the Supreme Court.

Moreover, these judgments were not cited by the Opposite Parties.

Hence, the Petitioner had no chance to differentiate the judgments

which are not applicable to this case. Whereas, the judgments cited by

the Petitioner has not been discussed or taken into consideration

though those had been submitted along with the written note on

19.07.2024

(e) In such view of the matter, he submitted that the impugned judgment

passed by this Court may be reviewed.

III. SUBMISSIONS OF THE OPPOSITE PARTY NOS.2 AND 3/ PPT:

6. Learned counsel for the Opposite Party Nos.2 and 3/ PPT earnestly

made the following submissions in support of his contentions:

Location: ORISSA HIGH COURT, CUTTACK

(a) This review petition is not maintainable as this Court has not left any

space for reconsideration of the same.

(b) Moreover, the said judgment has been passed after considering all the

facts and documents placed before this Court and, accordingly, the

said Judgment is complete from all aspects, which needs no further

interference.

(c) It is further submitted that the grounds taken in this review petition

were all taken by the Petitioner in his Writ Petition and those are also

vividly discussed in the judgment passed by this Court. Hence, this

review petition is nothing but a frivolous petition consuming the

precious time of this Court.

(d) It is submitted that the Petitioner was working as Assistant Surveyor

on contractual basis to assist the senior staffs in conducting the

hydrographic survey over maintenance dredging of approach

channel, harbor and sand trap. It is further submitted that during his

engagement in the said post, the Petitioner had submitted a bond that

he shall not claim regularization / absorption in Paradip Port Trust

service. No sanctioned vacancy of Asst. Hydrographic Surveyor or

Asst. Surveyor in regular establishment is available in Paradip Port

Trust. In this regard, it is contended that after cadre restructuring by

the Ministry of Shipping "No post of Asst. Hydrographic Surveyor,

Hydrographic Surveyor and Senior Hydrographic Surveyor" exists in the

new cadre list and the relevant extract of the same was filed by these

Opposite Parties under Annexure -A/3 of their Counter Affidavit.

Location: ORISSA HIGH COURT, CUTTACK

Accordingly, these Opposite Parties submitted there that the

Petitioner's case could not be considered for absorption to the post of

Asst. Hydrographic Surveyor.

(e) When there is no sanctioned vacancy and there is no existence of the

post of Asst. Hydrographic Surveyor after cadre restructuring by the

Ministry of Shipping, the Petitioner's case lacks merit. Accordingly,

the judgment was rightly passed for dismissal of the Writ Petition.

(f) In such circumstances, he contends that the Review Petition being

devoid of merit, is liable to be dismissed.

IV. COURT'S REASONING AND ANALYSIS:

7. The Review Petitioner seeks to recall of the judgment dated

22.11.2024 passed in W.P.(C) No.9568 of 2017 on the ground that it

was rendered without considering the material submissions and the

relevant law, resulting in an error apparent on the face of the record.

This Court carefully considered the rival submissions and perused the

materials on record. It is argued that the omission of this court to refer

the judgment and certain material facts submitted by him amounts to

an error apparent on the face of the record, justifying the invocation of

review jurisdiction under Order XLVII Rule 1 of the C.P.C.

8. At the outset, it is necessary to reiterate the limited scope of review. A

judgment may be open to review if there is a mistake or error

apparent on the face of record, or for some analogous reason such as

the discovery of new evidence which could not be produced earlier

despite due diligence. An error to be apparent must be self-evident

Location: ORISSA HIGH COURT, CUTTACK

and not required a process of elaborate reasoning or re-argument.

However, it is equally true that a glaring omission to apply a relevant

statute or a clear disregard of a binding authority can manifest as an

error apparent, as it strikes at the very basis of the judgment. With

these principles in mind, this Court proceeds to examine whether the

impugned judgment suffered from such an error in the context of the

facts of the present case.

9. The factual matrix is undisputed. Law is very clear that just by simply

not referring to a judgment is generally not a ground for review of a

Court's decision. It is often experienced by the Court that parties hand

over so many judgments to buttress their points and the Court often

refers to the judgment which is very much identical to the issue or

which is similar to the points of law. So, not referring to any judgment

given by the Petitioner does not vitiates the outcome of the case.

10. A review is typically granted for errors apparent on the face of the

record, new and important evidence, or other sufficient reasons that

demonstrate a material error. However, if the non-referred judgment

was a binding precedent that was omitted, and this omission led to a

manifest error in the original judgment, then it might be considered.

In Parsion Devi and Others v. Sumitri Devi and Others5, stating that

an error that is not self- evident and the one that has to be detected by

the process of reasoning, cannot be described as an error apparent on

(1997) 8 SCC 715

Location: ORISSA HIGH COURT, CUTTACK

the face of the record for the Court to exercise the powers of review,

the Apex Court held as under:

"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Tungabhadra Industries Ltd. v. Govt. of A.P.1reported in 1964 SCR (5) 174, this Court opined:

‟11.What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an „error apparent on the face of the record‟. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an „error apparent on the face of the record‟, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by „error apparent‟. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

Under the garb of filing a review petition, a party cannot be permitted

to repeat old and overruled arguments for reopening the conclusions

arrived at in a judgment. The power of review is not to be confused

with the appellate power which enables the Superior Court to correct

errors committed by a subordinate Court.

11. Perusal of the material placed on record and the arguments advanced

by the petitioner reveals that the scope of review jurisdiction is

narrow. As was rightly summed up by Justice Krishna Iyer in

Location: ORISSA HIGH COURT, CUTTACK

Northern India caterers (India) Ltd. v. Lt. Governor of Delhi6 has

appositely stated that a plea for review, unless the first judicial view is

manifestly distorted, is like asking for the moon". Therefore, unless

and until there is patent error in the judgment delivered which is

visible on the face of it, the review jurisdiction cannot be exercised. the

Apex Court in case of State of West Bengal Vs.Kamal Sengupta7 has

held that "a party cannot be permitted to argue de novo in the garb of

review."