State Of Odisha & Ors. vs Mukunda Prasad Mallick

Chittaranjan Dash, J.

Heard learned Additional Government Advocate appearing for the appellants-State and learned counsel appearing for the respondent.

There is a delay of 149 days in preferring the present appeal. Having considered the reasons furnished in the application seeking condonation of delay, we are satisfied with the same. Accordingly, the delay of 149 days in filing the appeal is condoned. I.A. No.502 of 2026 stands allowed. The appeal is taken up for consideration on merits.

This writ appeal, at the instance of the State and its authorities, calls in question the order dated 04.08.2025 passed by the learned Single Judge in W.P.(C) No.16287 of 2022, whereby the writ petition was allowed and the concerned authority was directed to regularize the services of the respondent with effect from 16.10.2022 on notional basis, with financial benefits to be extended from the date of the order.

The undisputed facts are that the Odisha Administrative Tribunal had invited applications by Notice No.6877/OAT dated 09.09.2011 for engagement of persons to perform duties at the residences of the Hon'ble Chairman and Members of the Tribunal on daily-wage basis. The respondent participated in the selection process and, out of 21 candidates who had appeared, was placed at Serial No.2 in the select list. He was accordingly engaged as a Peon on daily-wage basis in the year 2011. Subsequently, four posts of Peon were created by the General Administration and Public Grievance Department by communication dated 25.10.2014, and the respondent was appointed against one such post on contractual basis by Office Order dated 28.11.2014. The learned Single Judge has also noticed that the respondent continued to discharge his duties thereafter.

The respondent had earlier approached this Court seeking regularization of his service. By order dated 17.02.2022 passed in W.P.(C) No.4735 of 2022, the competent authority was directed to consider his representation. The representation was thereafter rejected by order dated 03.06.2022, leading to the filing of the writ petition from which the present appeal arises. The learned Single Judge, upon consideration of the materials on record, found that the respondent had initially been selected through a selection process and had thereafter been appointed against a post created in the establishment. It was further noticed that his contractual appointment had continued for about eleven years without any objection from the State.

The principal contention advanced on behalf of the appellants is that the respondent's appointment was not made in accordance with the recruitment rules applicable to the post of Peon and, therefore, no right to regularization could accrue in his favour. It is contended that the learned Single Judge failed to appreciate the statutory recruitment framework governing the establishment and erroneously extended the benefit of the Odisha Group-B, Group-C and Group-D Posts (Repealed and Special Provisions) Rules, 2022.

We are unable to accept the submission. The factual position noticed by the learned Single Judge assumes significance in this regard. The respondent was not appointed pursuant to an altogether clandestine or backdoor process. He had participated in a selection process initiated by the Odisha Administrative Tribunal in 2011 and had figured at Serial No.2 amongst the candidates selected therein. Thereafter, when four posts of Peon were created in the establishment in 2014, he was appointed against one such post on contractual basis. Thus, even assuming that the appointment did not strictly conform to every procedural requirement prescribed by the recruitment rules, the same cannot, on the facts of the present case, be equated with an appointment which is illegal or void ab initio. The distinction between an illegal appointment and an irregular appointment is, therefore, material.

At this stage, it would be apposite to refer to the judgment of the Hon'ble Supreme Court in Jaggo vs. Union of India & Others, reported in 2024 SCC OnLine SC 3826, wherein the Hon’ble Supreme Court, relying on the earlier precedents including Secretary, State of Karnataka vs. Umadevi, reported in (2006) 4 SCC 1 and State of Karnataka vs. M.L. Kesari, (2010) 9 SCC 247, has held as follows:

It is further held in Dharam Singh vs. State of Uttar Pradesh and another, 2025 INSC 998, as follows:

The present case has to be examined in the backdrop of the aforesaid principles. The respondent had been in continuous engagement since 2011 and, since 28.11.2014, had been serving against a post of Peon created in the establishment. The very fact that the competent authority had created four posts of Peon and thereafter appointed the respondent against one of them is a circumstance which cannot be overlooked while examining the nature of his appointment. His continued engagement for several years thereafter also demonstrates that the requirement of the establishment was neither occasional nor transitory.

More importantly, the learned Single Judge has not directed regularization merely on the basis of the length of service. The direction has been founded upon the statutory framework introduced by the Odisha Group-B, Group-C and Group-D Posts (Repealed and Special Provisions) Rules, 2022, particularly Rule 4 thereof. The said provision specifically deals with initial appointments governed by the contractual rules and provides for their treatment in the manner prescribed therein. The learned Single Judge, therefore, cannot be said to have granted a benefit dehors the statutory scheme.

Rule 4 assumes significance because it operates upon persons who were already serving under the contractual regime when the 2022 Rules came into force. The respondent admittedly continued in such contractual service on 16.10.2022. The learned Single Judge, therefore, rightly held that the respondent was entitled to the benefit of regularization from the date on which the said Rules came into force, i.e. 16.10.2022. The direction is, in any event, circumscribed by the further stipulation that such regularization would be on notional basis and that financial benefits would be available only from the date of the order.

The submission of the appellants founded upon the recruitment rules applicable at the time of the respondent's initial engagement does not persuade us to take a different view. The question is not whether the respondent could claim a right to regular appointment merely because he had completed a particular length of service. The question is whether, having regard to the subsequent statutory prescription contained in Rule 4 of the 2022 Rules and his undisputed status as a person continuing in contractual service on the date on which those Rules came into force, the benefit provided by the said Rules could be denied to him. On the facts of the present case, the answer has to be in the negative.

The reliance placed by the appellants upon the principle against regularization of illegal appointments, therefore, does not carry the matter any further. The material on record, as noticed by the learned Single Judge, does not disclose that the respondent secured entry into service through fraud, deception or a wholly surreptitious process. At the highest, the appointment may be said to have suffered from procedural irregularity. The distinction assumes significance in view of the law explained in Jaggo (supra).

We are also conscious that the power of judicial review in service matters cannot ordinarily be exercised for directing regularization contrary to statutory rules. However, that is not the nature of the direction issued in the present case. The learned Single Judge has acted upon the statutory provision contained in Rule 4 of the 2022 Rules and has confined the benefit of regularization to the date from which the said Rules came into force. The impugned order, therefore, does not amount to the Court itself creating a right to regular appointment in disregard of the statutory scheme.

In Dharam Singh (supra), the Hon'ble Supreme Court has also cautioned that the State must maintain accurate establishment records and explain, with reference to the material on record, why persons performing perennial functions are continued under precarious forms of engagement. The principle is of relevance here, particularly when the respondent had continued in service for more than a decade and had been appointed against a post created in the establishment. The subsequent statutory intervention through the 2022 Rules further fortifies the conclusion reached by the learned Single Judge.

Having considered the matter in its entirety, we find no infirmity in the order dated 04.08.2025 passed in W.P.(C) No.16287 of 2022 warranting interference in appellate jurisdiction. The reasoning adopted by the learned Single Judge is consistent with the statutory scheme and the principles enunciated by the Hon'ble Supreme Court in Jaggo (supra) and Dharam Singh (supra).

Accordingly, the writ appeal is dismissed. The order dated 04.08.2025 passed by the learned Single Judge in W.P.(C) No.16287 of 2022 is affirmed.