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Judgment
MURAHARI SRI RAMAN, J.—
THE WRIT APPEAL:
Beseeching intervention in the Order dated 11.08.2023 rendered in W.P.(C) No.7974 of 2023, whereby and whereunder the learned Single Judge of this Court invoking power under Articles 226 and 227 of the Constitution of India quashed the Order dated 10.03.2023 revoking the Order of regularisation of service dated 10.01.2015, without affording opportunity by the authorities concerned to the respondent No.1 (hereinafter for convenience be referred to as “employee”) with further direction to the other respondents “to regularise the service” of said respondent within eight weeks from the date of receipt of certified copy of the impugned Order herein, the appellant (arrayed as the opposite party No.2 in the writ petition), preferred the present intra-Court appeal.
THE FACTS PLEADED IN THE WRIT PETITION [W.P.(C) NO.7974 OF 2023]:
The facts as pleaded in the writ petition in a nutshell are that the Collector, Nuapada by virtue of issue of the Office Order No.121/SS, dated 15.10.2007 from the Office of the Collector and District Magistrate, Nuapada (Small Savings Section), the employee got “appointed temporarily as a peon in the District Small Savings Office, Nuapada against the existing vacancy duly created by Government of Odisha, Finance Department”, and such appointment got continued from time to time.
On satisfactory completion of six years of service vide Office Order bearing No.66, dated 12.12.2013, issued by the Collector, Nuapada the employee has been “appointed regularly with effect from 16.10.2013” in pursuance of General Administration Department Resolution No.GAD-SC-Rules-0009-2013— 26108/Gen, dated 17.09.2013.
The Collector, Nuapada recommended the name of the employee for according approval of regularization of services by a Letter dated 04.09.2014 addressed to the Deputy Secretary to Government, Finance Department, Odisha. However, the Finance Department in Letter No. 33699-FIN-SMS-SS-0064/2012/F, dated 06.12.2014 intimated the Collector, Nuapada that the High Power Committee in its Meeting held on 22.11.2014 “unilaterally agreed to revoke the regularization” of service of the employee.
An application under Article 226/227 of the Constitution of India filed before this Court, being W.P.(C) No.17338 of 2022, came to be disposed of on 28.07.2022 with an observation that the employee had already completed 14 years of contractual engagement, and therefore, it was directed for taking steps for absorption within a period of two months from the date of receipt of copy of said Order. Since said order was not complied with a contempt petition, being CONTC No.633 of 2023, was filed wherein further period of two weeks was allowed for compliance of direction contained in said Order dated 28.07.2022.
In order to comply with the Order dated 28.07.2022 of this Court in W.P.(C) No.17338 of 2022, the Collector, Nuapada by a Letter No.155, dated 05.11.2022 requested the Director, Small Savings, Finance Department, Odisha to accord necessary approval to absorb the employee in regular establishment relying on Judgment dated 09.09.2021 rendered in Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C) No.19951 of 2020, as the employee has been continuing as peon since 15.10.2007 against post created by the Finance Department vide Order No.37740—SS-35/2007/F, dated 14.09.2007 and he had completed fifteen years of service in the meantime.
However, the Joint Secretary to Government of Odisha, Finance Department by Letter No. 28529—FIN-SMS-SS-0031/2022/F., dated 18.11.2022 instructed the Collector, Nuapada for taking appropriate step to challenge the Order dated 28.07.2022 as the Judgment in Patitapaban Dutta Dash (supra) has been pending adjudication in appeal, being W.A. No.777 of 2022, in this Court.
Regretting continuance of contractual peon in the Collectorate, Nuapada, the Finance Department issued Letter dated 10.03.2023 to the Collector of Nuapada (Annexure-8 enclosed to the writ petition). The employee-respondent No.1 approached, therefore, this Court by way of filing the writ application with the following prayer(s):
―Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon‘ble Court may graciously be pleased to:
(i)direct/order the opposite parties to absorb the Petitioner since year 2013 as per Odisha Group ‗B‘, ‗C‘ and Group ‗D‘ Posts (Repeal and Special Provisions) Rules, 2022 and thereby quash the Order dated 10.03.2023 by concurrently holding the same as bad, illegal and not tenable in the eye of law;
(ii)pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice.
And for this act of kindness, the petitioner shall, as in duty bound, ever pray.‖
COUNTER AFFIDAVIT FILED BY THE COLLECTOR, NUAPADA AND
DISTRICT SMALL SAVINGS OFFICER, NUAPADA:
A counter affidavit being sworn to by Sri Bibekananda Mahananda, District Small Savings Officer, Nuapada has been filed on 29.04.2023 on his behalf as also on behalf of the Collector, Nuapada.
In Annexure-A/4 enclosed to the counter affidavit it is placed on record the fact that the Government created 17 numbers of posts of peon for the District Small Savings Organisation of Finance Department which fact is apparent from Letter No.37740—SS-35/07/F., dated 14.01.2007. It is also instructed to the Collector of Nuapada to fill up the respective vacancy on contractual basis by 31.10.2007 observing all formalities and guidelines. Out of the above, one post was meant for Nuapada District.
The employee submitted application along with relevant documents on 11.10.2007 for the post and prayed for his appointment. Basing on his application, the Collector, Nuapada appointed him as peon in District Small Savings Office, Nuapada on temporary basis vide Order No. 121, dated 16.10.2007.
In view of condition stipulated in the appointment Order the employee had furnished written undertaking on 16.10.2007 that he would not claim regular scale of pay and other allowances for continuing in the said ad hoc post. It is submitted in the counter affidavit that even though the employee has been given contractual appointment and the same got extended from time to time, “the undertaking debars him from claiming regularization”.
Since his joining in the post of peon on 16.10.2007, he continued in the said post of peon on contractual basis till 28.02.2023, being extended from time to time.
It is affirmed by the District Small Savings Officer, Nuapada that the employee approached this Court for regularization of his service after completion of six years of service by filing W.P.(C) No. 17338 of 2022, which was disposed of with a direction vide Order dated 28.07.2022 to absorb him in regular establishment, within a period to two months. The employee also filed a Contempt Petition, bearing CONTC No.633/2023, which was disposed of on 30.01.2023. But, the Finance Department directed not to “extend the post of contractual peon in the Small Savings Office, Nuapada vide their Letter No. 7738, dated 10.03.2023”.
It is asserted by the said District Small Savings Officer that “regularization of the petitioner in the said post is beyond the jurisdiction of the opposite party No. 3, i.e., the Collector, Nuapada”.
It is further case of the District Small Savings Officer for his behalf and on behalf of the Collector, Nuapada that in pursuance of Resolution No. GAD-SCRules-0009-2013-26108/Gen, dated 17.09.2013 of Government of Odisha in General Administration Department, the Collector had regularized the service of the employee vide Office Order No. 66 dated 12.12.2013 on completion of six years of service on 15.10.2013. In response to the regularization of the employee as peon in Office of the District Small Savings Officer, Nuapada, the Finance Department intimated vide their Letter No. 19115—FIN-SMS-SS-0064/2012/F., dated 25.06.2014 that the procedure indicated in paragraph 3 of General Administration Department Resolution No. 26108/Gen., dated 17.09.2013 had not been followed. Accordingly, the Collector, Nuapada intimated the Finance Department, Odisha by Letter No. 39/DSSO, dated 04.09.2014 specifying that procedure was followed in the matter of regularization of service of the employee. But, the Finance Department intimated vide Letter No.33699— FIN-SMS-SS-0064/2012/F, dated 06.12.2014 that the High Power Committee in their Meeting held under the Chairmanship of the Additional Chief Secretary to Government Finance Department, Odisha on 22.11.2014 for regularization of the services of contractual Group „C‟ and „D‟ employees under the Small Savings Directorate of Finance Department have unilaterally agreed to revoke the regularization of service of Sri Dwitiya Bhoi, contractual peon in the Office of the District Small Savings Officer, Nuapada, with a request to the Collector, Nuapada to revoke the Office Order No. 66 dated 12.12.2013. Accordingly, the Collector, Nuapada revoked the Order of regularization of service vide Office Order No.01/SS, dated 10.01.2015. Further, on 20.09.2021 the High Power Committee once again rejected the case of the respondent No.1 on the ground that proper recruitment procedure was not followed and conditions of the General Administration Department Circular No. 1066-GAD-SC-Rules-0009/2013/Gen., dated 16.01.2014 has not been satisfied. It is submitted in the counter affidavit that the Collector, Nuapada was left with no authority, but to abide by the decision taken by the High Power Committee.
Advice being received from the Finance Department, Odisha, the Collector, Nuapada has moved Office of the Advocate General, Odisha vide Letter No. 171, dated 28.11.2023 to prefer the instant writ appeal challenging the Order dated 28.07.2022 passed by this Court in W.P.(C) No.17338 of 2022. In this connection the Office of the Advocate General, Odisha has suggested vide Letter No. 19313 (3), dated 06.03.2023 that the opposite parties in the writ petition have to pass reasoned order either granting or refusing the claim of the employee.
Pursuant thereto, the Finance Department issued Letter bearing No.7738—FIN-SMS-SS-0064/2012/F., dated 10.03.2023 (Annexure-D/4 to the counter affidavit in the writ petition), addressing inter alia to the Collector, Nuapada to the effect that “continuance of contractual peon in the Small Savings Section of your Collectorate is regretted”.
ORDER OF THE LEARNED SINGLE JUDGE IN WRIT PETITION, W.P.(C)
NO.7974 OF 2023:
The learned Single Judge vide Order dated 11.08.2023, having heard counsel for respective parties, made the following observation:
―7. Having heard learned counsels appearing for the respective parties and on a careful consideration of the background facts of the present case as well as materials placed on record, this Court is of the considered view that the petitioner was initially regularized pursuant to the decision of the High Power Committee and subsequently, the High Power Committee revoked the same on the ground that the petitioner has not been recruited by following the recruitment procedure. On perusal of the letter of the Collector dated 05.11.2022 under Annexure-9, it appears that the Collector, Nuapada-Opposite Party No.3 has strongly recommended the case of the petitioner by following the principles laid down in the case of Patitapaban Dutta Dash Vrs. State of Odisha and others [W.P.(C) No.19951 of 2020, decided on 09.09.2021, reported at 2021 SCC OnLine Ori 2534]. Learned counsel for the petitioner also contended that the decision of this Court in the case of Patitapaban Dutta Dash Vrs. State of Odisha and others (supra) has already been taken by the division Bench of this Court. Therefore, the law laid down in the case of Patitapaban Dutta Dash Vrs. State of Odisha and others (supra) attains finality. this Court considering the factual background facts, the case of the petitioner covered by the ratio in the case of Patitapaban Dutta Das Vrs. State of Odisha and others (supra) and further on perusal of the letter of the Collector, Nuapada under Annexure-9, this Court is also considered view that the petitioner has already completed more than ten years of service and as such, his service is to be regularized by following the law laid down by the Hon‘ble Supreme Court in the case of State of Karnataka Vrs. Umadevi; reported in (2006) 4 SCC 1, in the case of State of Karnataka Vrs. M.L. Keshari; reported in (2010) 9 SCC 247 and in the case of Amarkant Rai Vrs. State of Bihar; reported in (2015) 8 SCC 265, which is also not disputed that the petitioner was appointed on regular vacant post on contractual basis.
8.In such view of the matter this Court finds that the Opposite Parties have not adopted the correct approach, initially regularizing the service of the petitioner and subsequently, revoking the said regularization on the ground that the proper recruitment procedure was not followed. The proper recruitment process is not followed by the Opposite Parties should have violated initial regularizing the service of the petitioner. Further, it appears that while revoking the order, no opportunity was also provided to the petitioner to put forth the same before the authorities. In such view of the matter, this Court is of the considered view that the impugned order revoking the regularization of service of the petitioner dated 10.01.2015 under Annexure-I/4 to the counter affidavit is hereby quashed. Further, the parties are directed to regularize the service of the petitioner within a period of eight weeks from the date of communication of certified copy of this order. Decision so taken shall be communicated to the petitioner within two weeks thereafter.
9.With the aforesaid observation/direction, the writ petition is disposed of.‖
THE WRIT APPEAL:
Since the respondent No.1 did not complete 10 years of service, the ratio of decision in Umadevi, (2006) 4 SCC 1 being inapplicable, the same should not have been directed to be followed by the learned Single Judge.
On 11.08.2023, the learned Single Judge of this Court disposed of the aforesaid Writ Petition with a direction to the appellant to regularize the service of the Respondent No.l by following the rationale laid down in the case of Patitapaban Dutta Dash Vrs. State of Odisha (supra)1. Said Judgment of learned Single Judge of this Court in Patitapaban Dutta Dash (supra) being confirmed by the Division Bench of this Court in W.A. No.777 of 2022 and connected batch of matters vide Judgment dated 12.04.20232, the State Government preferred a Special Leave Petition bearing S.L.P. (C) No. 16949 of 2023 against the common Judgment dated 12.04.2023 passed in W.A. No. 1086 of 2022 [State of Odisha Vrs. Somanath Mahapatra, one of the cases in the batch of matters disposed of along with Patitapaban Dutta Dash (supra)] and the Hon‟ble Supreme Court vide Order dated 14.08.2023 was pleased to pass the following Order:
―SLP(C) Nos. 16949/2023, 16945/2023 & 16825/2023
Issue notice, returnable on 11th September, 2023.
2.Mr. B.S. Tripathi, learned Advocate appearing on behalf of Mr. Siddharth Jain, Advocate-on-Record, on caveat, waives notice for the respondents.
3.Counter affidavit shall be filed within four weeks.
4.In the meantime, further proceedings in Contempt Petition, if filed, before the High Court alleging non-compliance of the impugned order shall remain stayed.
SLP(C) NO. 17393/2023
Issue notice and tag with SLP(C) No. 16949/2023.‖
It is also ground of attack by the appellant that “even otherwise, assuming, without prejudice, that the appointment of the respondent (No.1) was contractual in nature, the respondent does not satisfy the requirements as laid down under the Resolutions dated 17.09.2013 and 16.01.2014 issued by the State Government”.
It is submitted that if an appointment has been made without following due procedure of recruitment, then such person cannot claim regularization of his service as the appointment would be rendered illegal and therefore, it has been prayed for grant of following relief(s):
―Under the aforesaid facts and circumstances, the Appellants most humbly pray that this Hon‘ble Court may graciously be pleased to admit this appeal and call for the records, and after hearing the parties be pleased to set aside the impugned order dated 11.08.2023 (Annexure-1) passed by the Hon‘ble Single Judge in W.P.(C) No.7974 of 2023 in the interest of justice;
And for this act of kindness, the appellants shall, as in duty boubd, ever pray.‖
HEARING OF THE WRIT APPEAL:
Vide Order dated 19.04.2024 this Court, considering the application for the condonation of delay of 36 days in preferring writ appeal by the State of Odisha in Finance Department-appellant, condoned the delay, and directed for listing the matter for expeditious hearing taking into consideration the submission of counsel for the respondent No.1 that he is not getting his salary because of pendency of the present writ appeal. On being conceded by the counsel for respective parties that pleadings are completed in the writ proceeding, no further material need be filed in the writ appeal. However, the appellant through Deputy Director, Savings and Financial Services-cum-Deputy Secretary to Government, Finance Department filed an affidavit dated 16.05.2024 indicating the position that the respondent No.1 has been disengaged since 16.03.2023 and he has not been paid salary thereafter.
On 16.05.2024 the matter was heard and stood reserved for preparation and delivery of judgment. However, on a later date the same was brought back for hearing vide Order dated 10.01.2025, which is to the following effect:
―In view of the recent Supreme Court‘s decision in case of Jaggo Vrs. Union of India and Others, reported in 2024 SCC OnLine SC 3826 on the point of regularization/ absorption in Government service, the present case requires rehearing.
Accordingly, list this matter before the appropriate Bench for rehearing of this case.‖
On 06.05.2025, the following order was passed:
―This matter is taken up through Hybrid mode.
2.On going through order dated 11.08.2023 passed by the Single Bench in W.P.(C) No.7974 of 2023, it is revealed from paragraph-7 thereof that the learned Single Bench has noticed the contention of the petitioner therein and observed that ―Learned counsel for the petitioner also contended that the decision of this Court in the case Patitapaban Dutta Dash Vrs. State of Odisha and others, W.P.(C) No.19951 of 2020 has already been taken by the division Bench of this Court. Therefore, the law laid down in the case of Patitapaban Dutta Dash Vrs. State of Odisha and others (supra) attains finality‖.
3.Taking note of such contention, the Single Bench has directed the opposite parties in the said writ petition to consider the case of the petitioner. Now, the opposite parties against the order passed in the writ petition have come up before this Court by way of the instant writ appeal contending that the very judgment which is relied upon by the Single Bench, i.e., Patitapaban Dutta Dash Vrs. State of Odisha and others (supra) is sub judice before the Supreme Court in SLP(C) No.16949 of 2023.
4.It is felt apt to await finalization of the aforesaid SLP(C) No.16949 of 2023.
5.This matter is adjourned to 30th June, 2025.‖
After couple of adjournments, the matter was listed on 27.07.2026 when counsel for the respondent No.1 brought to the notice of this Court by way of Interlocutory Application bearing No.4567 of 2025 that the case of State of Odisha Vrs. Patitapaban Dutta Dash, SLP(C) No.5815 of 2024 along with the batch of matter being State of Odisha and Another Vrs. Bidyadhar Biswal and Others, SLP(C) No.17482 of 2023 &c. stood disposed of with the following Order on 12.11.2025:
―Delay condoned.
2.We are not inclined to interfere with the impugned judgment(s) and order(s) of the High Court; hence, the special leave petitions are dismissed.
3.Pending applications stand disposed of.‖
Under such premise, on the consent of counsel for the respective parties, the matter is heard finally on 27.07.2026.
Sri Satyabrata Mohanty, learned Additional Government Advocate appearing for the appellant and the respondent Nos.2 to 4 and Ms. Saswati Mohapatra, learned Advocate for the respondent No.1 advanced arguments for respective parties. Hearing being concluded on 27.07.2026, the matter is kept reserved for preparation of Judgment and delivery thereof.
ARGUMENTS ADVANCED BY THE COUNSEL FOR THE PARTIES:
Sri Satyabrata Mohanty, learned Additional Government Advocate commenced his argument with undisputed fact that the respondent No.1-employee got appointed as peon on 15.10.2007 on contractual basis against “sanctioned post” and his service was regularized by the Collector, Nuapada on 12.12.2013. In terms of paragraph 4 of the Resolution No.1066—GAD-SC-Rules-0009/2013/Gen., dated 16.01.2014 [vide Odisha Gazette, Extraordinary No.206, dated 24.01.2014], the High Power Committee was required to consider proposal for regularization and it was required to be approved. In its Meeting held on 22.11.2014 it was unilaterally agreed to instruct the Collector, Nuapada to revoke the Office Order dated 12.12.2013 regularising the service of Dwitiya Bhoi. Said Committee also sought for information with regard to details of recruitment procedure followed from the Collector, Nuapada so that his case can also be reconsidered. Thereafter, in the Meeting held on 20.09.2021, the case of Dwitiya Bhoi was taken up along with others and it was found that due recruitment procedure have not been followed for his appointment. The writ petition of the employee for regularization, being W.P.(C) No.17338 of 2022, was disposed of by this Court on 28.07.2022 with direction to take steps for absorption in service within the period stipulated. The employee thereafter brought the fact of non-compliance to the notice of this Court by way of CONTC No.633 of 2023, which was disposed of on 10.02.2023 granting further time of two weeks to comply with the direction in Order dated 28.07.2022. Accordingly, the Finance Department intimated the Collector, Nuapada with reference to his proposal dated 05.11.2022 for regularization of Dwitiya Bhoi by way of Letter dated 10.03.2023 that “further continuance of contractual peon in the small savings section of the Collectorate is regretted”. Challenging such action of the Finance Department the employee filed the writ petition, and Order passed therein on 11.08.2023 is the subject-matter of this writ appeal.
Drawing attention of this Court to paragraph 4 of the writ petition, Sri Satyabrata Mohanty, learned Additional Government Advocate submitted that it is admitted case of the respondent No.1 that the employee “is entitled to be regularized since 2013” though the Odisha Group „C‟ and „D‟ Posts (Contractual Appointment) Rules, 2013 are repealed by virtue of the Odisha Group „B‟, „C‟ and Group „D‟ Posts (Repeal and Special Provisions) Rules, 2022. He with vehemence urged that paragraph 4 of the Odisha Group „B‟, „C‟ and Group „D‟ Posts (Repeal and Special Provisions) Rules, 2022 specifically provided that “the initial appointee3 appointed under the Contractual Rules4 now in positions shall be deemed to have been appointed against the post on regular basis as on the date of commencement of these rules”. Since it is not in dispute that seventeen posts of peons on contractual basis were created and sanctioned by the Governor of Odisha for “the District Small Savings Establishments of the newly created 17 (seventeen) districts of the State under Small Savings Organisation of Finance Department” (Annexure-A/4 to the counter affidavit), the employee was “appointed temporarily as a peon” by Office Order vide Memo No.122, dated 15.10.2007 (Annexure-1 of the writ petition), the consideration of regularization of service as claimed in the writ petition is not tenable. It is objected to by the learned Additional Government Advocate that the learned Single Judge has ignored to take into consideration the applicability of Contractual Rules, 2013 to the facts of the present case; nonetheless, he conceded that this Court can mould the relief prayed for doing substantial justice to the parties.
Though Letter dated 12.12.2013 was issued by the Collector, Nuapada stating therein that “on satisfactory completion of six years of service on 15.10.2013” the employee “is appointed as peon regularly with effect from 16.10.2013” (Annexure-E/4 of the counter affidavit), the Government of Odisha in Finance Department pointed out by Letter dated 25.06.2014 vide Annexure-F/4 of the counter affidavit that regularization of Dwitiya Bhoi was made by the Collector, Nuapada “without approval of the Finance Department” and without following “procedure indicated in Paragraph 3 of the General Administration Department Resolution No.26108/Gen, dated 17.09.2013” and sought for information “whether the mandatory eligibility conditionalities prescribed by the General Administration Department have been followed with regard to the regularization of service of Sri Dwitiya Bhoi for further action”. Responding to such instruction, the Collector, Nuapada in his Letter dated 04.04.2014 (Annexure-G/4) submitted that the appointment of Dwitiya Bhoi as contractual peon was made by observing formalities and guidelines stipulated in Government Resolution No.26108— GAD-SC-RULES-0009-2013/Gen., dated 17.09.2013.
Sri Satyabrata Mohanty, learned Additional Government Advocate, referring to aforesaid Resolution dated 17.09.2013 submitted that the Collector, Nuapada though had taken into consideration criteria specified in said Resolution while regularizing the service of the employee vide Office Order dated 12.12.2013, failed in his approach to keep in view the clarificatory Resolution of the General Administration Department dated 14.01.2014 wherein the mandatory eligibility conditions for regularization of contractual appointees/ engagements specified in Resolution dated 17.09.2013 has been culled out. It is submitted that the eligibility conditions being not fulfilled, the Collector, Nuapada had rightly been instructed to revoke the appointment made by regularizing service of the employee.
Justifying such an action by the appellant and the respondent Nos.2 to 4, the learned Additional Government Advocate placed reliance on the Written Undertaking dated 16.10.2007 furnished to the Collector, Nuapada to contend that the respondent No.1 had made it clear that he would not claim for regular scale of pay and other allowances for continuing in the post of peon. He placed reliance on the terms of following Undertaking submitted by the respondent No.1:
It is submitted by learned Additional Government Advocate that it is emanating from Letter dated 20.04.2023 of the Collector, Nuapada that,
―In a letter to Collector, Nuapada vide Letter No. 33699, dated 06.12.2014, the Deputy Secretary to Government in Finance Department, Odisha informed the Collector that the High Power Committee in their Meeting under the Chairmanship of Additional Secretary to Government, Finance Department on dated 22.11.2014 unilaterally revoked the regularisation of the petitioner (respondent No.1 herein), Sri Dwitiya Bhoi. Further on dated 20.09.2021 the High Power Committee once again rejected the case of Sri Dwitiya Bhai on the ground that proper recruitment procedure was not followed and conditions of General Administration Department Circular No. 1066/Gen., dated 14.01.2014 has not been fulfilled.‖
It is further submitted by the learned Additional Government Advocate that the Deputy Director, Savings and Financial Services-cum-Deputy Secretary to Government, Finance Department, Bhubaneswar sworn to an affidavit dated 16.05.2024 placing on record the fact that by Office Order dated 26.06.2019 of the Collector, Nuapada, the District Small Saving Officer, Nuapada extended the service of the employee from 01.03.2019 to 20.02.2020; the same was extended subsequently again from 01.03.2020 to 28.02.2021 by Office Order dated 07.04.2020; and from 01.03.2021 to 28.02.2022 by Office Order dated 01.06.2021 and by Office Order dated 13.04.2022 from 01.03.2022 to 28.02.2023. The Collector, Nuapada by Letter dated 27.03.2024 intimated the Joint Director S&FS-cum-Joint Secretary to Government, Finance Department indicating that the employee “has been disengaged from his service from 01.03.2023 vide the Department Letter No.7738, dated 10.03.2023 and the information about his disengagement has been served to him vide this Office Letter No.38, dated 16.03.2023. Further Sri Bhoi has already been informed about non-payment of salary for March and April, 2023 vide Office Letter No.53, dated 18.05.2023.”
Under the above premises, the learned Additional Government Advocate submitted that though the employee was appointed against vacant sanctioned post in the year 2007, his case was rejected for regularization in service as mandatory eligibility condition, i.e., he did not face recruitment process stipulated in General Administration Department Resolution No.26108/Gen., dated 17.09.2013 read with Resolution No.1066/Gen., dated 16.01.2014 was not adhered to at the time of consideration of regularization vide Office Order dated 12.12.2013 issued by the Collector, Nuapada, as a result of which the proposal for approval of regular appointment in service of the respondent No.1 was refused, as per unilateral decision taken by the High Power Committee. In such view of the matter, the impugned Order dated 11.08.2023 of learned Single Judge passed in W.P.(C) No.7974 of 2023 requires intervention in this writ appeal.
Ms. Saswati Mohapatra, learned Advocate for the respondent No.1 would submit that there is no explanation put forth as to why it took around seven years from 2014 to 2021 to take a decision with regard to regularization of service by the High Power Committee. Even though unilateral decision is stated to have been taken by the High Power Committee in its Meeting held on 22.11.2014, there was no occasion for it to take up the matter again on 20.09.2021.
The rejection of claim for regularization and non-extension of service of the respondent No.1 beyond 28.02.2023 even after Order dated 10.03.2023 in CONTC No.633 of 2023 directing compliance of Order dated 28.07.2022 in W.P.(C) No.17338 of 2022 being passed by this Court is not above reproach.
The learned Single Judge was correct in his approach in observing that while revoking the order of regularization, no opportunity was afforded to the respondent No.1 to put forth his grievance before the authorities concerned.
The Collector, Nuapada being the appointing authority was well within his powers to appoint the employee against the vacant sanctioned post and the long continuance of service is considered to be justified reason to regularize his service on 12.12.2013. The High Power Committee could not have set the clock-ante by directing the appointing authority to revoke the regular appointment of the respondent No.1.
Under the aforesaid view of the matter, no flaw can be imputed against the Order dated 11.08.2023 of the learned Single Judge quashing “the impugned Order revoking the regularization of service of the petitioner (respondent No.1 herein) dated 10.01.2015”.
Ms. Saswati Mohapatra, learned counsel further argued that even if the Odisha Group „C‟ and Group „D‟ Posts (Contractual Appointment) Rules, 2013 has no application to the present case, the fact that the respondent No.1 has been appointed temporarily since 2007 against vacant sanctioned post (admitted by learned Additional Government Advocate during the course of hearing and supported by document on record) and even after order of revocation has been passed on 10.01.2015, the Letters dated 26.06.2019, 07.04.2020, 01.06.2021 and 13.04.2022 issued by the District Small Savings Officer extending the period of service till 28.02.2023 stand testimony to the fact that there was no break in service of the respondent No.1 for around 16 years. Therefore, on the principles propounded in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 and enuncitated in Patitapaban Dutta Dash and Others Vrs. State of Odisha and Others, 2021 SCC OnLine Ori 2534 of the learned Single Judge as confirmed by Division Bench vide Judgment dated 12.04.2023 reported at 2023 (I) ILR-CUT 906, the respondent No.1 is entitled to be regularized in service.
ANALYSIS AND DISCUSSION:
The Government of Odisha in Finance Department created and sanctioned 17 posts of peons in 17 districts, as is apparent from the following communication:
―Government of Orissa
Finance Department
***
No.SS-35/07—37740/F
From Sri P. Mishra Special Secretary to Government
To The Accountant General (Accounts), Odisha Bhubaneswar Sub.: Creation of seventeen posts of Peon for the District Small Savings Establishments under Finance Department.
Bhubaneswar, the 14.9.2007.
Sir, I am directed to convey the sanction of Governor to the creation of seventeen posts of peon on contractual basis at a consolidated salary of Rs.2550/ (Rupees two thousand five hundred fifty) only per month for the District Small Savings Establishments of the newly created 17 (seventeen) districts of the State under Small Savings Organisation of Finance Department.
The charge is debitable to ‗Demand No.05-2047-0.F.S-103- Promotion of Small Savings-0308-District Establishment-01004-Salaries for consolidated pay post Non Plan‘ in the Budget Estimates for the year 2007-08.
Yours faithfully,
Sd/-
Special Secretary
to Government
Memo No. 37741(33)/F., Dated 14.09.07
Copy forwarded to All R.D.Cs/All Collectors for information and necessary action.
The Collector, Khurda/Nayagarh/Jagatsinghpur/ Kendrapara/Jajpur/Bhadrak/Gajapati/Angul/Jhar suguda/Bargarh/Deogarh/Malkangiri/Rayagada/S ubarnapur/Nabarangpur/Nuapada/Boudh are requested to fill up these posts of Peon on contractual basis by 31.10.2007 observing all formalities and guidelines and taking a written undertaking (copy enclosed) from concerned candidates, under intimation to this Department for placement of allotment.
Deputy Director,
Small Savings-cum-
Deputy Secretary
to Government‖
In the counter affidavit it has been unequivocally stated that the respondent No.1 “submitted application for the post of peon along with relevant documents on 11.10.2007 and prayed for appointment. Basing on his application, the Collector, Nuapada, i.e., opposite party No.3 has been pleased to appoint the petitioner as peon in District Small Savings Office, Nuapada on temporary basis vide Order No.121, dated 16.10.2007”. It is conceded by the learned Additional Government Advocate that the employee has been appointed vide Office Order No.121/SS-XX-16/2007, dated 16.10.2007 issued by the Collector, Nuapada, who is the appointing authority, against a sanctioned post, which reads as follows:
―Sri Dwitiya Bhoi, son of Trilochan Bhoi, of village Nuapada (Rajbedapada), P.O.: Nuapada in the district of Nuapada is hereby appointed temporarily as a peon in District Small Savings Office, Nuapada against the existing vacancy duly created by Government of Odisha, Finance Department vide Letter No.37740/F., dated 14.09.2007 communicated in next Memo on contractual basis at a consolidated salary of Rs.2,550/-(rupees two thousand five hundred fifty) only per month subject to following terms and conditions:
1.That the appointment is purely temporary and on contract basis and can be terminated at any time without any notice and assigning any reason thereof.
2.That the continuance in the said post is contingent upon extension of the said post with concurrence of Finance Department and subject to lis satisfactory performance to be evaluated by the appropriate authority.
3.That in future he shall not claim regular scale of pay and other allowances for continuing in the said post merely on the ground that he has been given a contract appointment and his contractual appointment have been extended from time to time.
4.That he shall furnish an undertaking in the prescribed format vide letter No 37740/F. Dated 14.09.2007 of Government Orissa, Finance Department.
5.He shall join in the said post by 31.10.2007 positively, failing which thes appointment order shall stand cancel automatically.
The charge is debitable to ‗Demand No 05-2047-OF.S-103-Promotion of Small Savings-0308- District Establishment-01004-Salaries for consolidated pay post Non-Plan)‘.‖
Thus, sufficient indication is available in the aforesaid documents that the employee has been appointed as peon on contractual basis after observing all formalities and guidelines as instructed by the Finance Department. It is admitted by the Additional Government Advocate that the employee was “appointed as peon regularly” vide Officer Order dated 12.12.2013, which is reproduced herein below:
―Office of the Collector & District Magistrate,
Nuapada
(Small Savings Section)
Office Order
No. 66/SS, Date 12.12.2013
In pursuance to the Resolution No. GAD-SC-RULES-0009-2013—26108/Gen., dated 17.09.2013 of Government in General Administration Department (vide para-2, conditions of Service on Regular Appointment) the temporary appointment of Dwitiya Bhoi, son of Trilochan Bhoi of Village: Nuapada (Rajbedapada), P.O./District: Nuapada on Contractual basis at a consolidated salary of Rs.2550/- per manth vide Office Order No 121/SS, dated 15.10.2007 of Collector, Nuapada against the vacancy duly created by Government of Odisha Finance Department vide their letter No. 37740/F., dated 14.09.2007, and on satisfactory completion of six years of Service on 15.10.2013, Sri Dwitiya Bhoi, son of Trilochan Bhoi of Village Nuapada (Rajbedapadea) P.O./District: Nuapada is appointed regularly with effect from 16.10.2013 in the time scale of pay of Rs.4,750 to Rs.14,680-S1 plus Grade pay of Rs.1,500/-p.m. with D.A. and other allowances as admissible in the correspondence pay band from time to time.
Other conditions of service shall be such as has been provided in the relevant recruitment rules.‖
The Collector, Nuapada addressed the Deputy Secretary to Government, Finance Department vide Letter No.39, dated 04.09.2014 with a request to take necessary steps at Government level and sanction necessary allotment for release of salary and stated thus:
―In inviting reference to the letters on the subject cited above, I am to say that, seventeen numbers of contractual peons had been created (including 01 contractual peon of DSSO, Nuapada) by Government of Odisha, Finance Department vide Letter No.37740/F, dated 14.09.2007 with a request to fill up these posts of peon on contractual basis by 31.10.2007 observing all formalities and guidelines and taking a written undertaking from the concerned candidates under intimation to Government in Finance Department for placement of allotment. Accordingly, this Office has appointed Sri Dwitiya Bhoi as contractual peon vide this Office Order No.121, dated 16.10.2007 by observing the following formalities and guidelines stipulated in Govt. Resolution No.26108/Gen dated 17th Sept 2013.
1.Regular Appointment: As it was the single sanctioned post of Pean in District Small Savings Office, Nuapada, there is no scope for preparation of gradation list of contractual employees by the Appointing Authority.
2.Regular appointment of the aforesaid contractual employee has been made on completion of six years of service vide this Office Order No. 66 dated 12.12.2013 as he has been initially appointed on contractual basis vide this Office Order No. 121 dated 16.10.2007.
3.After completion of six years of contractual service, Sri Dwitiya Bhoi, Peon has been issued a regular appointment Order vide this Office Order No.66 dated 12.12.2013 under intimation to Government in Finance Department taking into account his working performances.‖
After regular appointment Order being issued in favour of the petitioner, in the Meeting of the High Power Committee on 22.11.2014 (Annexure-8 to the writ appeal) it has been decided unilaterally as follows:
―2. The meeting of the HPC was held under the Chairmanship of the Additional Chief Secretary, Finance Department in the Conference Hall on 22.11.2014 at 10.30 AM to consider the regularisation of services of suitable contractual Group – ‗C‘ & ‗D‘ employees engaged under the Small Savings Directorate of Finance Department in pursuance of General Administration Department Resolution No. 26108/Gen., dated 17.09.2013 and No. 1066/Gen., dated 16.01.2014.
***
7.In case of Sri Dwitia Bhoi, Peon, Collector, Nuapada has gone beyond the words and spirit of the General Administration Department Resolution dated 10.01.2014 to regularise his services at his level. The Committee unilaterally agreed to instruct the Collector to revoke such regularisation order. He will be further requested to furnish the details of recruitment procedure followed in case of Sri Bhoi so as to reconsider the matter, if found fit, for regularisation.‖
The Deputy Secretary to Government vide Government of Odisha in Finance Department Letter No.33699—FIN-SMS-SS-0064/2012/F., dated 06.12.2014 (Annexure-H/4 of the counter affidavit in writ petition) apprising such decision taken unilaterally in the Meeting, requested the Collector, Nuapada as follows:
―You are therefore requested to revoke your Office Order No.66, dated 12.12.2013 and simultaneously furnish the details of the recruitment procedure followed during appointment of Sri Bhoi along with documentary evidences for reconsideration of his case for regularization by the High Power Committee.‖
Consequently, the Collector, Nuapada by his Order No.01/SS, dated 10.01.2015 (Annexure-I/4 of the counter affidavit in writ petition), revoked the regularization of service until further order from the Finance Department.
Notwithstanding implementation of decision taken by the High Power Committee, the Finance Department vide Letter No.5719—FIN-SMS-SS-0064/2012 (Pt.)/F., dated 02.03.2017 (Annexure-5 of writ petition) allowed continuance of nine posts of contractual peon including that of Nuapada. The text of said letter runs thus:
―I am directed to convey the sanction of Government to the continuance of nine posts of Peon created in this Department G.O.No.37740/F., dated 14.09.2007 on contractual basis at a consolidated salary of (Pay Rs.4750/- + Grade Pay Rs.1700/-) Rs.6450/- (Rupees Six thousand four hundred fifty) only per month for the Office of the District Small Savings Officers in the District of Kendrapara, Gajapati, Bargarh, Deogarh, Rayagada, Subarnapur, Nabarangpur, Nuapada and Malkangiri under the Small Savings Directorate of Finance Department for a further period of one year, i.e., from 01.03.2017 to 28.02.2018.
The charge is debitable to ‗Demand No.05-2047-Other Fiscal Services-103-Promotion of Small Savings-0308-Dist. Estt.01004-Salaries for consolidated pay posts (Non-Plan)‘ in the Budget Estimate for the year, 2017-18.‖
The Collector, Nuapada vide Letter No.50, dated 20.04.2023 reiterating fact addressed the Joint Secretary to Government, Revenue and Disaster Management Department, Odisha regarding the direction contained in the Order dated 28.07.2022 passed in W.P.(C) No.17338 of 2022 and the Order dated 10.02.2023 passed in CONTC No.633 of 2023. However, in the Meeting held on 20.09.2021 the High Power Committee took up the matter of regularization of service of contractual peons. Relevant portion of the minutes (Annexure-9 of the writ appeal) is extracted hereunder:
―2. The meeting of High Power Committee was held under the Chairmanship of the Principal Secretary, Finance Department in the Conference Hall on 20.09.2021 at 3.30 P.M. to consider the proposal of seven contractual Group-„D‟ employees engaged in the different districts under Small Savings Directorate, Finance Department in pursuance of General Administration Department Resolution No. 26108/Gen., dated 17.09.2013 and No. 1066/Gen. dated 16.01.2014.
3.The HPC perused the Memorandum alongwith the individual service history of seven Group D (Peon) employees engaged in the different Districts under Small Savings Directorate.
4.As per the General Administration Department Resolution No. 26018/Gen dated 17.09.2013 and No. 1066/Gen dated 16.01.2014 issued regarding regular appointment of existing contractual Group-D employees, the Committee examined the cases with reference to eligibility conditions like (i) creation of contractual posts, (ii) adoption of the ORV Act at the time of initial selection and (iii) adherence of due recruitment procedure prescribed for recruitment of regular post. The Committee also examined the status of Court cases filed by some of the Group D employees.
5.All individual cases of Contractual Peons were examined and the recommendations of the Committee are as follows:
•In case of Subarnapur, Rayagada, Nabarangpur, Nuapada, Malkangiri and Deogarh District, post has been created on contractual basis vide Office Order No. 37740/F dated 14.09.2007. In Sambalpur District contractual post has been created in lieu of abolition of one vacant post vide G.O. No. 39481/F dated 21.09.2007.
•Being a single post reservation under ORV Act is not applicable in all cases.
•The cases of Sri Satyaban Sahoo, Contractual Peon, Rayagada, Smt Pramodini Amanatya, Contractual Peon, Nabarangpur, Sri Dwitiya Bhoi, Contractual Peon, Nuapada, Prakash Chandra Darjee, Contractual Peon, Malkangiri, Sri Krushna Chandra Sahu, Contractual Peon, Sambalpur, were not considered by the Committee for regularisation of their services as it was found that the due recruitment procedure have not been followed for their appointment.‖
By way of affidavit dated 16.05.2024 sworn to by the Deputy Director, Savings and Financial Services-cum-Deputy Secretary to Government, Finance Department it is affirmed that the engagement of Sri Dwitiya Bhoi, Peon on contractual basis, has been extended by Letters dated 26.06.2019, 07.04.2020, 01.06.2021 and 13.04.2022 till the financial year 2022-23, even after order of revocation of regularization of service has been passed on 10.01.2015.
Cumulative reading of all these documents indicates that even if the Collector, Nuapada in the Letter No.39, dated 04.09.2014 addressed to the Deputy Secretary to Government, Finance Department clearly stated that appointment of Sri Dwitiya Bhoi as contractual peon was made by observing the formalities and guidelines stipulated in Government Resolution No.26108/Gen., dated 17.09.2013 vide Office Order No.121, dated 16.10.2007, there was no occasion for the High Power Committee which took up the matter after around 7 years, i.e., in the year 2021, and to take a decision based on the criteria specified in General Administration Department Resolution No. 1066/Gen., dated 16.01.2014 in addition to No.26018/Gen., dated 17.09.2013. It is apparent that the High Power Committee has not considered the case of the respondent No.1 in proper perspective. As the appointing authority while regularizing the service of the respondent No.1 in the year 2013, considered the conditions contained in Resolution No.26018/Gen., dated 17.09.2013, the High Power Committee could not unilaterally decide to instruct the Collector, Nuapada to revoke the decision of regularization of service by adhering to what is contained in the Resolution No. 1066/Gen., dated 16.01.2014. Furthermore, when the appointing authority, namely the Collector, Nuapada, considered regularization of the service of the respondent No.1, in absence of source of power with the High Power Committee, its unilateral decision could not have been thrusted on the Collector, Nuapada.
Though initially the Additional Government Advocate to drive his contention home, tried to stem on the written undertaking given by the respondent No.1, such a stand was abandoned during the course of hearing on the query of this Court whether the respondent No.1 understood the document written in English as he had signed in Odia (Annexure-C/4 enclosed with counter affidavit). The said document nowhere transpires that the contents of the undertaking was ever read over and explained to the respondent No.1 and he was made aware of the implication of such an undertaking.
The learned Additional Government Advocate also could not place on record any plausible explanation as to the circumstances as to why the High Power Committee took up the matter in the year 2021 with respect to regularization of service even as the unilateral decision to revoke was taken in the year 2014. It is also noted that after revocation of regularization of service of the employee by the Collector, Nuapada, there was extension of service of the employee till 2023.
Whereas there is no dispute that the employee had been continuing since the creation of the post of peon in the Office of the District Small Savings Officer in the year 2007 till 2023, it is indicative of the fact that the requirement of peon in the said office is of perennial nature. In the Letter dated 05.11.2022 the Collector, Nuapada addressed to the Director, Small Savings, Finance Department clearly stated that the employee had been working as peon on contractual basis in District Small Savings Branch, Collectorate, Nuapada since 15.10.2007 in view of new post created by the Finance Department, Odisha and he had been continuing in the said post of peon since that date on
“receipt of continuance orders from the Finance Department from time to time”. In the said Letter, it is also recommended that “the approval for absorption of Sri Bhoi as peon in the regular establishment is required as per Order passed in Writ Petition (C) No.17338 of 2022” by this Court by “the Finance Department, Odisha and also its administrative department”. Letter dated 04.09.2014 issued by the appointing authority (Annexure-G/4 of counter affidavit) clearly spelt out that
“this office has appointed Sri Dwitiya Bhoi as contractual peon vide this Office Order No.121, dated 16.10.2007”. It is noteworthy that the Collector, Nuapada, the appointing authority, has in his Letters dated 15.10.2007 and 04.09.2014 clearly apprised the Government of Odisha in Finance Department that by observing formalities and guidelines stipulated in Government Resolution No.26108/Gen., dated 17.09.2013 regular appointment of the petitioner, engaged on contractual basis, “was made on completion of six years of service vide Office Order No.66, dated 12.12.2013 as he has been initially appointed on contractual basis vide Office Order No.121, dated 16.10.2007”. Hence, having regard to such material evidence available on record, it is opined that the High Power Committee could not take into consideration the criteria specified in General Administration Department Resolution No.1066— GAD-SC-Rules-0009-2013/Gen., dated 16.01.2014, as the same was not in vogue during 2013 when the Collector, Nuapada issued Letter dated 12.12.2013 appointing the employee “regularly with effect from 16.10.2013 in the time scale of pay of Rs.4,750/- to Rs.14,680/- S1 plus Grade Pay of Rs.1,500/- per month with D.A. and other allowances as admissible in the correspondence pay band from time to time”.
After such letter of regularization being issued the High Power Committee taking into consideration the terms of General Administration Department Resolution No.1066— GAD-SC-Rules-0009-2013/Gen., dated 16.01.2014 [published in the Odisha Gazette, Extraordinary No.206, dated 24.01.2014] exceeded their scope of inquiry by instructing the Collector, Nuapada to revoke such regularization in service of the employee by Office Order No.66, dated 12.12.2013.
It is trite that the right of an employee, which accrued in his favour on the date of appointment, cannot be taken away by the amending provisions of the Rules concerning the service with retrospective effect. An employee, while entering into service, is subjected to the condition of service as on the date, when he joins. Any right given to such employee under the provision of any Act or Rules governing the employment, if taken away by amending such Rules with retrospective effect, the same would be violative of Articles 14 and 16 of the Constitution of India and it would amount to arbitrary and unreasonable action.
Under the aforesaid circumstances, the Collector, Nuapada, therefore, has not acted within the precincts of law while revoking the appointment of the employee-respondent No.1 based on unilateral decision of the High Power Committee, more particularly without adhering to the principles of natural justice. In other words, once this Court holds that the decision of the High Power Committee is untenable in the eye of law, the revocation of appointment of the respondent No.1 by the Collector based on such decision cannot be sustained on the principle sublato fundamento cadit opus, meaning thereby if the foundation is removed, the superstructure falls.
While issuing letter of regularly appointing the employee, the Collector, Nuapada has adhered to stipulations contained in General Administration Department Resolution No.26108—GAD-SC-Rules-0009-2013/Gen., dated 17.09.2013. It is also fact taken into consideration by the appointing authority vide Letter dated 04.09.2014 (Annexure-G/4) that there was no requirement of preparation of gradation list as the post against which the respondent No.1 has been appointed as peon is a single sanctioned post in the Small Savings Section of Nuapada Collectorate.
Reference may be had to General Administration Department Resolution No.1066—GAD-SC-Rules-0009/2013/Gen., dated 16.01.2014, which was published in the Odisha Gazette, Extraordinary No.206, dated 24.01.2014 (Annexure-5 of the writ appeal) by the High Power Committee to take unilateral decision to instruct the Collector, Nuapada to revoke regular appointment of the employee is flawed inasmuch as the caption heading of said Resolution reads as “Regular appointment of existing contractual Group C and Group D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such rules”.
An Order bearing No.15592— GAD-SC-GCS-0002-2015/Gen, dated 19.07.2017 of the Government of Odisha in General Administration and Public Grievance Department would throw light on the applicability of
―General Administration and Public Grievance Department
ORDER
The 19th July, 2017
Subject: Applicability of the provisions of the Odisha Group ‗C‘ & Group ‗D‘ (Contractual Appointment) Rules, 2013 and the Odisha Group-‗B‘ (Contractual Appointment) Rules, 2013 to the recruitments for which advertisements were made prior to commencement of these Rules.
315152— GAD-SC-GCS-0002-2015/Gen Wherees, as per the policy decision of the Government, the provisions of regular recruitment to various Group-‗C‘ & Group-‗D‘ Posts and Group-‗B‘ Posts under the Government were substituted by ‗contractual recruitment‘ as per the provision made under the Odisha Group ‗C‘ and Group-‗D‘ Posts (Contractual Appointment) Rules, 2013 Published in the Gazette on 18.11.2013 and Odisha Group-‗B‘ (Contractual Appointment) Rules, 2013 Published in the Gazette on 17.01.2014.
And whereas, it has come to the notice of the Government that, the provisions of the said Rules were interpreted differently and while in some cases appointments were made on contractual basis as per the provisions made under sub-rule (2) of Rule 5 of the said Rules, in other cases regular appointments were allowed after publication of these Rules basing upon the onset of the process of recruitment, i.e. issue of the advertisement prior to the coming into force of the above Rules.
And whereas, with a view to streamline the issue, guidelines were issued in G.A. Department Circular No.18826 dated 31.12.2016 on the basis of the views of the Learned Advocate General, Odisha and in consultation with the Law Department that, all initial appointments which are governed under the provisions of Odisha Group ‗C‘ and Group ‗D‘ Posts (Contractual Appointment) Rules, 2013 and Odisha Group ‗B‘ (Contractual Appointment) Rules, 2013 shall be on ‗contractual basis‘ with effect from the date of commencement of these Rules even if the onset of the recruitment process had started prior to coming into force of these Rules.
And whereas, a large number of cases have been filed before different Courts of Law to challenge the above instructions shouting for relief to allow regular appointments on the ground that, applications were invited in the advertisement for regular recruitment and the recruitment was completed without modification of the advertisement for contractual appointment.
And whereas, considering the ground exhibited in the litigations, it is now opined by the Law Department that
„where advertisements have been made for regular posts prior to coming into force of 2013 Rules and the conditions of such advertisements remain unaltered till the recruitment process is complete, appointments to such posts should be made as per the relevant recruitment rules without treating them as contractual under the provisions of 2013 Rules.‟
Therefore, after careful consideration, Government have been pleased to relax the provisions of sub-rule (2) of Rule 5 of both the Contractual Rules, 2013 by invoking the powers conferred under the relaxation provisions prescribed under both these Rules so as to allow those appointment, pursuant to the advertisement made for regular appointment prior to commencement of both these Contractual Rules but subsequently not converted to contractual appointment by way of re-advertisement as of regular basis.
All earlier instructions/clarifications issued on the issue stand modified to the above extent. This has been concurred in by the Finance Department.
ORDER
Ordered that the order shall be published in the Extraordinary issue of the Odisha Gazette for general information.
By Order of the Governor A.K.K. Meena Special Secretary to Government‖
Such being the clarificatory Order of the Government, in the first place the learned Additional Government Advocate neither cited any statutory Recruitment Rules nor did he refer to any executive instruction that existed prior to 2013 so as to demonstrate that the post held by the employee is in “contravention of any statutory recruitment rules”.
Secondly, meticulous reading of said caption of the Resolution clearly shows that it is applicable to “existing contractual Group C and Group D employees who are not holding any post” in contravention of any statutory recruitment rules or executive instructions. It is not and cannot be disputed that the employee was appointed against sanctioned post after consideration of his application for appointment to the said post as admitted by the Collector, Nuapada in his counter affidavit filed in the writ petition. It is curious to note that in the writ petition, though the Government of Odisha in the Revenue and Disaster Management Department and the Finance Department were arrayed as parties to the proceeding as opposite party Nos.1 and 2 respectively, no counter affidavit has been filed by them to justify their decision taken. Rather, it is surprising to notice that the District Small Savings Officer has filed counter affidavit on his behalf and on behalf of the Collector, Nuapada who were impleaded as opposite party Nos.3 and 4 respectively. In the counter affidavit contradictory stand has been taken by these opposite parties (Nos.3 and 4) and it is perceived that the Collector, Nuapada has taken contrary stand than what has been spelt out in his letters, e.g., Letter No.39/DSSO, dated 04.09.2014 (Annexure-G/4 of the counter affidavit).
Therefore, the instruction to the Collector, Nuapada to revoke the order of regularisation of service of the respondent No.1 on the basis of unilateral decision taken by the High Power Committee is wholly misconceived, whimsical, tainted with arbitrariness and without application of rational conscientious mind.
It has been impressed upon the Government by the Collector, Nuapada that he has followed the terms/conditions contained in Resolution dated 17.09.2013 [Published in the Odisha Gazette, Extraordinary No.1769, dated 18.09.2013].
For ready reference said Resolution is reproduced hereunder:
―GAD-SC-RULES-0009-2013—26108/Gen
Government of Odisha
General Administration Department
***
RESOLUTION
Bhubaneswar dated the 17th September, 2013.
SUB: Regular appointment of existing contractual Group C
and Group D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such rules.
The policy regarding regular appointment of following categories of contractual Group ‗C‘ and Group ‗D‘ employees appointed under the State Government was under active consideration of Government for some time past. Contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services, following the recruitment procedure prescribed for the corresponding regular posts and the principle of reservation of Posts and services for different categories of persons decided by the state Government from time to time.
Government after careful consideration and in supersession of the Resolutions/ Orders/ Instructions issued by different Departments of Government to that effect; except as respects things done or omitted to be done before such supersession, have been pleased to decide as follows:
1. Regular Appointment.—
(1)A gradation list of such contractual employees shall be prepared by the Appointing Authority on the basis of their date of appointment. In case, the dates of appointment of two or more employees are the same their inter-se position may be decided on the basis of their date of birth, taking the elder as senior.
(2)Regular appointment of the above categories of contractual employees shall be made on the date of completion of six years of service or from the date of publication of this Resolution, whichever is later, in the order in which their names appear in the gradation list prepared under para 1. The period of six years shall be counted from the date of contractual appointment prior to publication of this Resolution.
(3)Consequent upon regular appointment under the contractual post, if any, shall get re-converted to regular sanctioned post.
(4)In case the person concerned has crossed the upper age limit for entry into Government service on the date of contractual appointment for the corresponding regular post, the appointing authority shall allow relaxation of upper age limit.
2. Conditions of Service on Regular Appointment.—
(1)Regular Appointments: On the date of satisfactory completion of six years of contractual service or from the date of publication of this Resolution, whichever is later, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority.
(2)Pay and other benefits: On regular appointment they shall be entitled to draw the time scale of pay plus Grade Pay with DA and other allowances as admissible in the corresponding pay band.
(3) Other conditions of service:
(a)The other conditions of service shall be such as has been provided in the relevant recruitment rules.
(b)The conditions of service in regard to matters not covered by this Resolution shall be the same as are or as may from time to time be prescribed by the State Government.
3. Interpretation.—
If any question arises relating to the interpretation of this Resolution: it shall be referred to the State Government whose decision thereon shall be final.
4.This has been concurred in by Finance Department and Law Department vide their UOR No.2909-ACSF, Dated 09.07.2013 and UOR No.1687/L., Dated 19.07.2013 respectively. ORDER: Ordered that the Resolution be published in the extraordinary issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all Departments of Government / all Heads of Departments/all Collectors/ Registrar, Odisha High Court/Registrar, Odisha Administrative Tribunal Special Secretary, Odisha Public Service Commission/ Secretary, Odisha Staff Selection Commission/ Secretary, Odisha Sub-ordinate Staff Selection Commission, Bhubaneswar.‖
Nothing is placed by the learned Additional Government Advocate to demonstrate that the Collector, Nuapada has deviated any of the conditions stipulated in the said Resolution dated 17.09.2013, while issuing letter appointing the employee-respondent No.1 “regularly”.
Notwithstanding the fact that as the petitioner has been appointed pursuant to creation of 17 District Small Savings Organisation of Finance Department in different districts on 14.09.2007, and his regular appointment, on completion of six years of service as peon on contractual basis, as made by the Collector, Nuapada on 12.12.2013, the same was revoked on 10.01.2015 on the instruction of the Finance Department in its Letter No.FIN-SMS-SS-0064/2012/33699/F., dated 06.12.2014 consequent upon unilateral decision of the High Power Committee. Therefore, the respondent No.1 had approached this Court by way of filing writ petition, W.P.(C) No.17338 of 2022, praying therein for a direction to the opposite parties to consider his case for regularisation of service. This Court while disposing of said writ petition directed as follows:
―4. It is submitted that even though the claim of the Petitioner is covered by the Resolution issued by the G.A. Department in the year 2013 and the decision of this Court rendered in the case of (Patitapaban Dutta Dash Vrs. State of Odisha & Others), but the opposite parties are not taking any steps to absorb the Petitioner in the regular establishment.
5.This Court also find from the pleadings that the various communications have been made in between the Collector and the Government for absorption of the petitioner as a Peon in the regular establishment in which post he is continuing since 2007.
6.Since the Petitioner has already completed more than 14 years of contractual engagement, this Court directs the Opposite Party No.1 to take appropriate steps for absorption of the Petitioner in the regular establishment taking into account the resolution governing the field and the decision of this Court as cited (supra). The entire exercise shall be completed within a period of two months from the date of receipt of this order.
7.With the aforesaid observation and direction, the Writ Petition is disposed of.‖
As there was non-compliance of said order, the petitioner was constrained to bring it to the notice of this Court in CONTC No.633 of 2023, which proceeding was dropped on 10.02.2023 by observing thus:
―2. As a last chance, two weeks time is allowed to comply with the order dated 28.07.2022 passed by this Court in W.P.(C) No.17338 of 2022, failing which the Contemnor shall appear before this Court and explain as to why proceeding under the Contempt of Court‘s Act shall not be initiated against him for willful and deliberate violation of this Court‘s order.
3.With the aforesaid observation the CONTC is dropped.
4.A free copy of this order be supplied to the learned Additional Government Advocate for communication to the Contemnor.‖
The learned Additional Government Advocate does not dispute that such orders are passed and there is no plea or substance placed to show that the aforesaid orders are challenged before any other fora. Therefore, qua the petitioner, the said Orders are binding and are to be followed by the opposite parties scrupulously.
Record reveals the Collector, Nuapada has made it clear by way of Letter No.155, dated 05.11.2022 addressed to the Director, Small Savings, Finance Department, as follows:
“*** In the meanwhile, Sri Bhoi has completed 15 year of service against the contractual post. As per the judgment dated 09.09.2021 passed in W.P.(C) No.19951 of 2020, Patitapaban Dutta Dash Vrs. State of Odisha & Others, who have completed more than ten years of service, on being employed and continued by the authorities, in terms of the judgments of the Apex Court as discussed above, their services are also to be regularised. The direction of Apex Court as discussed in the above judgment, Sri Bhoi is to be absorbed as peon in the regular establishment as he has completed 15 years of service continuously. The approval for absorption of Sri Bhoi as peon in the regular establishment is required as per order passed in Writ Petition (C) No.17338 of 2022 by the Hon‘ble High Court of Orissa by the Finance Department, Odisha as originally said post created by the Finance Department, Odisha and as also its Administrative Department.
It is, therefore, requested to please issue necessary approval order for absorption of Sri Bhoi as peon in the regular establishment so as to comply the order passed by the Hon‘ble High Court, Orissa in W.P.(C) No.17338 of 2022 or issue further any instruction in this regard to avoid legal litigation.‖
Even though the Government of Odisha has not assailed the Order dated 28.07.2022 before any higher fora, it has responded to above said letter of the Collector, Nuapada which is to the following effect:
―Government of Odisha
Finance Department
***
No. 28529—FIN-SMS-SS-0031/2022/F. dated 18.11.2022 From P.K. Mishra Joint Secretary to Government To The Collector, Nuapada Sub.: Compliance to the order dated 28.07.2022 passed by Hon‘ble High Court, Orissa in WP (C) No. 17338 of 2022 filed by Sri Dutiya Bhoi, Contractual Peon. Small Savings Section, Nuapada. Ref Your Letter No. 155 dated 05.11.2022 Sir, I am directed to invite a reference on the subject noted above and to say that this Department had requested to Revenue & Disaster management Department to authorise Collector, Nuapada (Appointing Authority) for taking further necessary steps in the matter in reference to the order of Hon‘ble Court vide Letter No. 26419/F., dated 26.10.2022. However, you have requested to issue necessary approval order for absorption of Sri Bhoi as peon in the regular establishment on the basis of judgment dated 09.09.2021 passed in WP(C) No 19951/2020 Patitapaban Dutta Dash Vrs State of Odisha & others. As ascertained from Legal consultant of Finance Department also the Additional Government Advocte Office of the Advocate General, the Revenue & Disaster management Department have filed writ petition against judgment dated (19.09.2021 passed in WP(C) No. 19951 of 2020, Patitapaban Dutta Dash Vrs State of Odisha & others vide writ appeal No. 777/2008 and the case is under sub judice.5 In view of the above, you are requested to file writ petition on Order dated 28.07.2022 passed by Hon‘ble High Court, Orissa in WPC No. 17338 of 2022 (Dwitiya Bhoi Vrs. State of Odisha and others) by following proper procedure. Yours faithfully, Sd/- P.K. Mishra Joint Secretary to Government 18.11.2022‖
It is un-understandable as to the step advised to be taken by the Government of Odisha through Joint Secretary before this Court. Be that be, though there was non-compliance of Order dated 28.07.2022 of this Court passed in W.P.(C) No.13778 of 2022, without awaiting final outcome of Patitapaban Dutta Dash case before the Division Bench in appeal, which was preferred at the behest of the State of Odisha, action has been taken to the detriment of the employee-respondent No.1, as found reflected in Letter No.7738—FIN-SMS-SS-0064/2012/F., dated 10.03.2023 issued by the Government of Odisha in Finance Department (Annexure-D/4 to the counter affidavit in the writ petition), content of which runs as follows:
―I am directed to invite a reference to the subject mentioned above and to intimate that the proposal received from your respective offices for further continuance of contractual peon in the Small Savings Section of your Collectorate is regretted.‖
Glance at aforesaid letter of the Government of Odisha seems to be an attempt to play dirty game against the poor employee in the lowest rung of the Office, who despite being appointed against a sanctioned post of peon, has been thrown out the moment the consideration to regularise him in the service arose. To reiterate, it has already been noticed that since the date of initial creation of the post of peon (single post, which does not attract reservation policy), the petitioner had been continuing in said sanctioned post with effect from 15.10.2007 till 20.02.2023, which fact has been acknowledged in the Office Order dated 13.04.2023 of the Collector, Nuapada.
In Patitapaban Dutta Dash and Others Vrs. State of Odisha and Others, W.P.(C) No. 19951 of 2020, vide Judgment dated 09.09.2021, a Single Bench of this Court has made the following observation:
―8. It is worthwhile to mention here that the Court comes into picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in contractual, temporary or ad hoc status for a long period. Where a contractual, temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While issuing direction for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, a contractual, ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person.‖
Aforesaid Judgment rendered by the Single Judge of this Court in Patitapaban Dutta Dash (supra) [2021 SCC OnLine Ori 2534] got the seal of approval by the Division Bench of this Court being carried in appeal before the Division Bench, bearing W.A. No.777 of 2021, which came to be disposed of vide Judgment dated 12.04.2023 reported at 2023 (I) ILR-CUT 906. While directing the State of Odisha to implement the direction of the Single Judge “in letter and spirit”, this Court in the said intra-Court appeal made it clear as follows:
―43. As regards the decision in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 as explained later in State of Karnataka Vrs. M.L. Kesari, 2010 (II) OLR (SC) 982 = (2010) 9 SCC 247, the Respondents can possibly seek the extension of the benefit of the ratio of the aforementioned decisions for two reasons. One, that the Respondents were engaged against sanctioned posts and two, they were engaged after qualifying in a computer test. In M.L. Kesari (supra), the Supreme Court explained:
‗It is evident from the above that there is an exception to the general principles against ‗regularization‘ enunciated in Umadevi, if the following conditions are fulfilled:
(i)The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii)The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure.‘
44.Going by the above legal position, in the present cases, at the highest, the respondents could be considered to be ‗irregularly‘ appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularization. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain Nagar Vrs. State of U.P., AIR 2018 SC 233 and Rajnish Kumar Mishra Vrs. State of U.P., (2019) 17 SCC 648.‖
In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it has been restated as follows:
―*** The Division Bench rightly held that the learned Single Judge has not followed the principle of law as given by this Court in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working. ***‖
In the present case, the competent authority, i.e., the appointing authority-Collector, Nuapada, on the basis of instructions of the Finance Department creating posts of peon in the Small Savings Section of the Collectorates, appointed the respondent No.1 since 2007 against sanctioned post after following formalities (as admitted in the counter affidavit by the opposite party Nos.3 and 4). Ratio of the decision in Vibhuti Shankar Pandey (supra) would, thus, apply to the present fact-situation.
From the aforesaid discussions, it is manifest that the appellant has flouted the Order of this Court. So long as the Order dated 28.07.2022 passed by this Court in W.P.(C) No. 17338 of 2022 (Dwitiya Bhoi Vrs. State of Odisha and others) has not been varied by this Court or modified by the Supreme Court— in fact the same remained unchallenged by the State of Odisha— in the considered opinion of this Court, the appellant is obligated to follow the direction contained therein. Pertinent here to note that while dropping contempt proceeding in CONTC No.633 of 2023 vide Order dated 10.02.2023, this Court extended the period by granting two weeks to comply with the judgment/order dated 28.07.2022 passed by this Court in W.P.(C) No.17338 of 2022. Having not complied with the terms of direction contained in the judgment/order in the afore-noted writ petition, it is unimaginable and unbecoming for an Officer in the rank of Joint Secretary in the Finance Department imparted instructions to the Collector, Nuapada “to file writ petition on Order dated 28.07.2022 passed by Hon‘ble High Court, Orissa in WPC No. 17338 of 2022 (Dwitiya Bhoi Vrs. State of Odisha and others)‖. This Court is at loss to fathom that a writ petition against an order passed in writ petition can be directed to be filed. This Court is reminded of the following observations made by the Hon‟ble Supreme Court of India in Israr Ahmad Khan Vrs. Amarnath Prasad, 2026 SCC OnLine SC 322, which runs thus:
―Belated/Delayed Appeals to Delay/Defeat Implementation:
27.Delayed filing of appeals should be the exception, but in recent times, the exception has practically evolved to become the rule. Orders passed by the Courts are not complied with for a long time, and when Contempt Petitions are filed, belated appeals, with tremendous delay, are preferred.
28.The (alleged) continuing contumacious conduct of the defaulting party is sought to be justified on the mere production of a Diary/Filing/Stamp Reporting Number showing that an appeal has been preferred, so as to obtain multiple adjournments in contempt matters.
29.We, in no uncertain terms, deprecate these practices. It is felt that by such modus operandi, disobedient litigants act brazenly which has the further effect of bringing down the authority and majesty of the Courts and the rule of law, interfering in the administration of justice. The same may well, in certain situations, border on criminal contempt.
30.The High Courts should deal with such unscrupulous litigants, moreso when they happen to be „State‟, within the meaning of Article 12 of the Constitution, or like bodies, with an iron hand. Unless the High Courts, so also this Court deal with these aspects firmly, we run the clear risk of erosion of the unflinching faith that the ordinary litigants of this country repose in the Judiciary at all levels. It is the solemn duty of all of us manning the Courts across the hierarchy to ensure that the public faith never wavers.‖
Referring to subsequent developments since the impugned Order dated 11.08.2023 was passed, the learned Additional Government Advocate submitted that the State of Odisha carried the Judgment dated 12.04.2023 in W.A. No.777 of 2021 (Patitapaban Dutta Dash), to Hon‟ble Supreme Court of India in a batch of matter being S.L.P.(C) No.16949 of 2023. It has been conceded by the learned Additional Government Advocate that while the Hon‟ble Supreme Court issued notice in the said matters, the effect of Judgment dated 12.04.2023 in W.A. No.777 of 2021 [State of Odisha Vrs. Patitapaban Dutta Dash] was not stayed. Nonetheless, by Order dated 12.11.2025 the Hon‟ble Supreme Court of India dismissed the special leave petitions in a batch of matter including that of the matter relating to the respondent No.1 herein.
Having regard to the law laid down by the Hon‟ble Supreme Court of India in Kunhayammed and Others Vrs. State of Kerala and Another, (2000) 6 SCC 359, at this stage, reference to principle discussed by this Court in the case of Orissa Power Generation Corporation Ltd. Vrs. State of Odisha, AIR 2015 Ori 128 = 2015 (II) ILR-CUT 909 = 2015 SCC OnLine Ori 90 (paragraphs 47-54) may be relevant. In this case it has been observed as follows:
―47. Now let us see whether the decision of the High Court is of binding nature and if so to whom. Undoubtedly, there is no express provision in the Constitution like Article 141, in respect of the High Court, Tribunals within the jurisdiction of the High Court are bound to follow its judgment, but as the High Court has the power of superintendence over them under Articles 226 and 227 of the Constitution, the law declared by the High Court in the State is binding on them.
48.The honourable Supreme Court in the case of East India Commercial Co. Ltd., Calcutta Vrs. Collector of Customs, Calcutta AIR 1962 SC 1893, held as under:
‗*** We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and that they cannot ignore it. ***‘
49.The honourable Supreme Court in the case of Sri Baradakanta Mishra Vrs. Bhimsen Dixit, (1973) 1 SCC 446, held as follows :
‗15. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the Constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court‘s disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the Constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the Constitutional authority and respect of the High Court, generally, but is also likely to subvert the rule of law and engender harassing uncertainty and confusion in the administration of law.‘
50.The honourable Supreme Court in the case of Union of India Vrs. Kamlakshi Finance Corporation Ltd. AIR 1992 SC 711, in paragraph 6 has observed as follows:
‗*** The High Court has, in our view, rightly criticized the conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not „acceptable‟ to the Department— in itself an objectionable phrase— and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.‘
51.The honourable Supreme Court in the case of Sri Baradakanta Mishra, (1973) 1 SCC 446 held that a subordinate court or Tribunal/Authority refusing to follow a High Court‟s decision where a petition for leave to appeal to Supreme Court against that High Court decision was pending would amount to deliberate disobedience and wilful disregard of the High Court and is contempt of Court. Therefore, in the case at hand the plea of the assessing authority with regard to not following the decision of this court on the ground of pendency of SLP before the honourable Supreme Court amounts to deliberate disobedience and wilful disregard of this Court.
52.In the case of K.N. Agrawal Vrs. Commissioner of Income-tax, (1991) 189 ITR 769 (All), while emphasizing the need of following judgments of the High Courts by the assessing officer, the Allahabad High Court has observed as under (pages 772 and 773 in 189 ITR) :
‗*** Indeed, the orders of the Tribunal and the High Court are binding upon the assessing officer and since he acts in a quasi-judicial capacity, the discipline of such functioning demands that he should follow the decision of the Tribunal or the High Court, as the case may be. He cannot ignore it merely on the ground that the Tribunal‟s order is the subject-matter of revision in the High Court or that the High Court‟s decision is under appeal before the Supreme Court. Permitting him to take such a view would introduce judicial indiscipline, which is not called for even in such cases. It would lead to a chaotic situation.***‘
53.The Andhra Pradesh High Court in the case of State of Andhra Pradesh Vrs. Commercial Tax Officer, (1988) 68 STC 177 (AP) = (1988) 169 ITR 564 (AP), held as under (page 186 in 68 STC) :
‗*** If any authority or the Tribunal refuses to follow any decision of this High Court on the above grounds it would be clearly guilty of committing contempt of this High Court and is liable to be proceeded against.‘
54.Needless to say that if the Tribunal and authorities functioning within the territorial jurisdiction of the High Court would not follow the order of the High Court that will lead to chaos. Everybody would be then seeking interpreting the law according to their own whims and fancies. In such situation, lawyers may confuse not knowing how to advise their clients. The general public would be in dilemma as to what is the correct position of law. As a result, the judiciary would lose its credibility.‖
Matter in the said Orissa Power Generation Corporation Ltd. being carried to the Hon‟ble Supreme Court of India in S.L.P.(C) No. 35253 of 2015 by the State of Odisha, on 05.07.2017 the following Order was passed:
―Heard the learned counsels for the parties and perused the relevant material. We do not find any legal and valid ground for interference.
The Special Leave Petition is dismissed. Contempt proceedings against Mr. A.C. Nayak, Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur is directed to stand closed.‖
The following observation of the Hon‟ble Calcutta High Court in the case of Pijush Kanti Chowdhury Vrs. State of West Bengal, 2007 SCC OnLine Cal 267 referring to Narcotics Control Bureau Vrs. Dilip Prahlad Namade, AIR 2004 SC 2950 and Shree Chamundi Mopeds Ltd. Vrs. Church of South India Thrust Association, Madras, AIR 1992 SC 1432, may be pertinent:
―Therefore, the effect of the order of stay in a pending appeal before the Apex Court does not amount to ‗any declaration of law‘ but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the Judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned.‖
In Tobacco Manufacturers (India) Ltd. Vrs. Commissioner of Sales Tax, Bihar, (1961) 2 SCR 106, it has been held as follows:
―The principal point that Mr. Chatterjee, learned counsel for the appellants, argued before us related to the duty of the tax authorities to obey the orders of the Board of Revenue and give effect to them, and he submitted that the High Court erred in denying his clients the relief of mandamus on the ground that that order was erroneous. In support of this argument learned counsel sought reliance on a recent decision of this Court in Bhopal Sugar Industries Vrs. Commissioner of Income-tax, Civil Appeal 407 of 1956; since reported at (1960) 40 ITR 618 in which it was held that when an order was made by a superior tribunal (in that case the Income-tax Appellate Tribunal) directing the Income-tax Officer to compute the income of an assessee on a particular basis and that order had become final, the subordinate officer had no right to disregard the direction, because it was wrong and that the High Court when approached by the assessee for the issue of a writ of mandamus, was bound to enforce the final order of the superior tribunal and could not refuse to do so because it considered the order of the tribunal to be wrong. This Court pointed out that when the order which the tribunal had jurisdiction to pass became final, it bound all parties to it and its correctness could not be challenged collaterally in proceedings for enforcing that order. The attempt of learned counsel for the appellants was to bring this case within the scope of the above ruling.
The ratio of this decision is to be found in this passage:
‗By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hirearchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.‘
To attract the principle thus enunciated, it is necessary that there should be an order of a superior tribunal clear, certain and definite in its terms, and without any ambiguity, to which the subordinate authority or officer to whom it is addressed, could give effect.‖
In Godrej Sara Lee Ltd. Vrs. The Excise and Taxation Officer-cum-Assessing Authority, (2023) 3 SCR 871 it has been laid down that:
―In our view, the Revisional Authority might have been justified in exercising suo motu power to revise the order of the Assessing Authority had the decision of the Tribunal been set aside or its operation stayed by a competent Court. So long it is not disputed that the Tribunal‟s decision, having regard to the framework of classification of products/tax liability then existing, continues to remain operative and such framework too continues to remain operative when the impugned revisional orders were made, the Revisional Authority was left with no other choice but to follow the decision of the Tribunal without any reservation. Unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to assessees. We share the view expressed in Union of India and Others Vrs. Kamlakshi Finance Corporation Ltd. 1992 SUPP (1) SCC 443 = AIR 1992 SC 711.‖
A Division Bench of this Court in the case of Orissa Forest Corporation Ltd. Vrs. Assistant Collector, 1982 SCC OnLine Ori 209 held as follows:
―We do not think this should be the attitude of the Union Government. The demand is under the Statute and the statutory appellate authority, on the set of facts which are common both to the period when relief was granted and the period for which the impugned demand has been made, has already determined that no levy is exigible. As long as the appellate order stands, it must be duly respected and only when the revisional authority vacates the order and holds that the decision of the appellate authority is wrong and the demand was justified, no demand should be raised. It has been indicated on more than one occasions by the Supreme Court with reference to directions of the Appellate Tribunal under the Income Tax Act that such directions are binding and decisions rendered by appellate authorities should be respected by the subordinate revenue authorities and no attempt should be made to wriggle out of the binding decisions of higher authorities as long as they remain in force. The same principle should be applied to the present set of facts and we are, therefore, inclined to take the view that the demand under Annexure-4 should be set aside but we would make it clear that in the event of the appellate orders being vacated, under the Statute the liability would revive and notwithstanding our quashing Annexure-4 the statutory authority would be entitled to raise a demand in terms of the decision which may be ultimately sustained under the Statute.‖
At this stage it is reminded of that, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. [See, Shrilekha Vidyarthi (Kumari) Vrs. State of U.P., (1991) 1 SCC 212].
In Kalinga Mining Corpn. Vrs. Union of India, (2013) 5 SCC 252 the principle of res judicata vis-‡-vis scope to reopen already decided issue in another litigation inter se parties has been discussed as follows:
―42. Considering the principle of res judicata, this Court in Mohanlal Goenka Vrs. Benoy Kishna Mukherjee, (1952) 2 SCC 648 = AIR 1953 SC 65 = 1953 SCR 377 held as under:
‗23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as ‗res judicata‘ between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ‗res judicata‘.‘ This Court also held that:
‗14. *** A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides.‘ [See State of W.B. Vrs. Hemant Kumar Bhattacharjee, AIR 1966 SC 1061]
43.In view of the aforesaid clear enunciation of the law by this Court, it would appear that even if the judgment dated 02.07.2001 [Kalinga Mining Corpn. Vrs. Union of India, AIR 2002 Ori 83] rendered by the High Court in OJC No. 11537 of 1999 and the dismissal [Kalinga Mining Corpn. Vrs. Union of India, SLP (C) No. 13556 of 2001, Order dated 24.08.2001, wherein it was directed: ‗The special leave petition is dismissed.‘] in limine of SLP (C) No. 13556 of 2001 arising from the aforesaid judgment is considered to be erroneous in view of the judgment in Saligram Khirwal Vrs. Union of India, (2003) 7 SCC 689, the matter regarding the locus standi of the LRs of Respondent 10 to proceed with a mining lease application cannot be permitted to be reopened at this stage since it has become final inter partes.‖
On the conspectus of above settled legal position, it can be said that mere fact that the order of this Court is not „acceptable‟ to the Government/Department is in itself an objectionable phrase and such order is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court, it can be said that even if the Judgment in Patitapaban Dutta Dash (supra) was under challenge before the Hon‟ble Supreme Court of India, that would not take away the effectiveness or operation of Order dated 28.07.2022 passed in W.P.(C) No.17338 of 2022 (Dwitiya Bhoi Vrs. State of Odisha) as the same has attained finality, being not questioned by the State of Odisha.
This Court would wish to notice certain decisions relevant for consideration whether the respondent No.1 is entitled for regularisation of service.
Noticing the Judgment of the Hon‟ble Supreme Court in the case of Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, in Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407 the observation of this Court runs as follows:
―12. Similarly, in the case of Amarendra Kumar Mahapatra and Others Vrs. State of Odisha and Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, the Supreme Court was of the opinion that the appellants were entitled to regularization in service having regard to the fact that they have rendered long years of service on ad hoc basis.
13.In the case at hand, it can be ascertained that the petitioner was appointed against a substantive vacant post and he had been discharging his duties in the said post since 1993. The appointment was made on an ad hoc basis and was extended from time to time. Since the petitioner was appointed against substantive vacancy and the post was sanctioned by higher authorities, the petitioner should have been extended the benefit of regulatisation like other similarly situated persons.‖
Culling out distinction between “illegal” and “irregular” appointments in Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716 it has been laid down as follows:
―7. It is evident from the above that there is an exception to the general principles against ‗regularisation‘ enunciated in Umadevi, (2006) 4 SCC 1, if the following conditions are fulfilled:
(i)The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii)The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.‖
When it is admitted fact that the respondent No.1 is appointed against sanctioned post and continued to work in the post of peon since 2007 till 2023, the appellant is not justified in his approach to instruct the appointing authority not to extend the continuance. In consideration of the argument advanced by the learned Additional Government Advocate that there is absence of open competitive selection process in appointing the respondent No.1, it can be safely said that such appointment on temporary basis may be treated as “irregular”, but not “illegal” as laid down in Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716.
Views expressed by the Hon‟ble Supreme Court of India:
This Court feels it apposite to have regard to certain decisions rendered by the Hon‟ble Supreme Court of India qua regularisation in service of employees engaged on contractual/NMR/ DLR/Temporary, etc. basis and worked for substantial number of continuous service.
Reference can be had to Union of India Vrs. Subhankari Das, 2023 (III) ILR-CUT 979, wherein it has been stated that,
―5. Having heard learned counsel for the parties and after going through the records, it is admitted that the opposite parties are discharging their duties and responsibilities from the date of their initial appointment in the year 1995 and 2002. In the year 2017, their designations were changed without any change of remuneration. Without regularising their services, the authorities issued a circular on 15.02.2018, which is absolutely a camouflaged way of approach to the difficulties of the opposite parties to deprive them of the benefit of their regularisation after utilising their services from 1995 and 2002, i.e., for more than 23 years and 16 years by then.
6.The reliance was placed by the present petitioners before the Tribunal on the cases of State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1; Government of Tamil Nadu Vrs. Tamil Nadu Makkal Nala Paniyalargal, 2023 SCC OnLine SC 393 and Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 and submission was made that there was no sanctioned post available for engagement of the opposite parties and that the process of engagement of the opposite parties was not in accordance with Article 14 of the Constitution of India. Therefore, the opposite parties have no right for regularisation.
7.The above stand of the petitioners cannot have any application to the case of the present opposite parties, as because, in a case of similarly situated persons, i.e. Basanta Kumar Sahoo Vrs. Union of India, W.P.(C) No.24759 of 2012, disposed of on 31.07.2017, relying on the decisions rendered in Umadevi (3), (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Keshari, 2010 (II) OLR (SC) 932 = (2010) 9 SCC 247, direction was issued for regularisation of such employees. Similarly, in the case of Manoj Kumar Jena Vrs. Union of India, W.P.(C) No. 24758 of 2012, disposed of 31.07.2017, this Court also took the similar view as was taken in the case of Basanta Kumar Sahoo (supra). The order passed in the case of Manoj Kumar Jena (supra) was assailed by the authorities before the Apex Court in S.L.P. No.35963 of 2017, which was dismissed vide order dated 05.01.2018. Thereby, the order passed by this Court in Manoj Kumar Jena (supra) got affirmed in the apex Court. Here, it is worth mentioning that in both the cases indicted above, i.e. in the case of Basanta Kumar Sahoo and Manoj Kumar Jena (supra), the orders have been passed by one of us (Dr. B.R. Sarangi, ACJ). The said order having been affirmed by the apex Court, as a consequence thereof, the same has been implemented. The decision of Basanta Kumar Sahoo (supra) was referred to by the High Court of Delhi in the case of Amrish Kumar Vrs. Indian Institute of Mass Communication, W.P.(C) No.5906 of 2018 & CM Appl No.23016 of 2018, disposed of on 14.02.2020 [2020 SCC OnLine Del 1915].
8.In Amrish Kumar (supra), the High Court of Delhi observed as follows:
‗In the present case too, the workmen admittedly have been working for 23 years. It clearly tantamount to unfair labour practice by denying them the benefits of regular services for 23 years. The objective of the Act is to prevent unfair labour practice which is defined in detail in 5th Schedule of the Industrial Disputes Act, 1947 with reference to Section 2A. The specific definition applicable to the present case is clause 10 which reads as under:
‗10. To employ workmen as ―badlis‖, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.‘ The facts of the instant case as discussed hereinabove clearly shows that keeping the workmen in uninterrupted service for 23 years as casual workmen and denying them the status and privilege of permanent workmen, constitutes unfair labour practice which is illegal and needs to be quashed. Furthermore, similarly situated workmen of the respondent who worked in its other administrative unit in Orissa (Dhenkanal), for roughly half a century on ad hoc basis, have been directed by the Orissa High Court in Basanta Kumar Sahoo Vrs. Union of India, W.P.(C) No.24759 of 2012, decided on 31.07.2017 to be regularized. The said judgment has referred to and relied upon Umadevi (supra) and State of Karnataka Vrs. M.L. Kesari (2010) 9 SCC 247. The SLP against the said judgment of the Orissa High Court was dismissed by the Supreme Court on 05.01.2018; therefore, it has attained finality. The case of the present petitioners is identical. That being the position i.e. they had worked for almost 23 years; the employer was same; they had been working against the sanctioned posts; they were not considered as regular employees, therefore, the treatment meted out to them constitutes unfair labour practice. In the circumstances, their services too shall be regularized from initial date of joining, with all consequential benefits.
9.It is pertinent to mention here that the decision rendered by the High Court of Delhi in Amrish Kumar (supra) was challenged before the apex Court in Special Leave to Appeal (C) No. 710 of 2021, which was dismissed vide order dated 10.12.2021 and, as a consequence thereof, the same has also been implemented. Therefore, the Central Administrative Tribunal, relying on the said judgment, having passed the order impugned, this Court is not inclined to interfere with the same. As such, the order passed by the Central Administrative Tribunal dated 13.07.2023 in O.A. No. 260/00/163 of 2018 is hereby confirmed and the petitioners are directed to regularise the service of the opposite parties from initial date of their joining with all consequential benefits within a period of sixty days from the date of receipt of the order.‖
In view of State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410; and Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716 wherein it has been clearly laid down that in order to ascertain whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. It has already been noticed in Umadevi‘s case, (2006) 4 SCC 1, which was further explained in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, that the “regularisation” in service can be permissible if the following conditions are fulfilled:
i.The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal.
ii.In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
A Single Bench of this Court in Patitapaban Dutta Dash Vrs. State of Odisha, 2021 SCC OnLine Ori 2534, has made the following observation:
―8. It is worthwhile to mention here that the Court comes into picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a fair ideal to its employees consistent with requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in contractual, temporary or ad hoc status for a long period. Where a contractual, temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While issuing direction for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, a contractual, ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person.‖
Aforesaid Judgment rendered by the Single Judge of this Court in Patitapaban Dutta Dash (supra) got the seal of approval of this Court being carried in appeal bearing W.A. No. 777 of 2021 before the Division Bench, which came to be disposed of vide Judgment dated 12.04.2023 [see, (2023) (I) ILR-CUT 906]. While directing the State of Odisha to implement the direction of the Single Judge “in letter and spirit”, this Court in the ultimate held as follows:
―44. Going by the above legal position, in the present cases, at the highest, the respondents could be considered to be ‗irregularly‘ appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularization. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR 2018 SC 233 and Rajnish Kumar Mishra Vrs. State of U.P., (2019) 17 SCC 648.‖
Vide Order dated 12.11.2025 the Hon‟ble Supreme Court of India dismissed the Special Leave Petition (Civil) bearing No.5815 of 2024 (State of Odisha Vrs. Patitapaban Dutta Dash) along with other batch of matters tagged to SLP(C) No.17482 of 2023 (State of Odisha Vrs. Bidyadhar Biswal and Others).
The view of Hon‟ble Supreme Court of India expressed in the case of Jaggo Vrs. Union of India, 2024 SCC OnLine SC 3826 = 2024 LiveLaw (SC) 1032, is as follows (extracted from SCC):
―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 Vrs. Union of India, (2024) 1 SCR 1230, it was held that 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. ***‘
21.The High Court placed undue emphasis on the initial label of the appellants‘ engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.
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 Declaration [International Labour Organization— Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy] 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 judgment of the United State in the case of Vizcaino Vrs. Microsoft Corporation, 97 F.3d 1187 (9th Cir. 1996) serves as a 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 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.
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.
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.‖
In the case of Shripal Vrs. Nagar Nigam, 2025 SCC OnLine SC 221 = 2025 LiveLaw (SC) 153 referring to observations rendered in Jaggo (supra), the Hon‟ble Supreme Court of India has been pleased to clarify that (extracted from SCC):
―16. The High Court did acknowledge the Employer‘s inability to justify these abrupt terminations. Consequently, it ordered re-engagement on daily wages with some measure of parity in minimum pay. Regrettably, this only perpetuated precariousness: the Appellant Workmen were left in a marginally improved yet still uncertain status. While the High Court recognized the importance of their work and hinted at eventual regularization, it failed to afford them continuity of service or meaningful back wages commensurate with the degree of statutory violation evident on record.
17.In light of these considerations, the Employer‘s discontinuation of the Appellant Workmen stands in violation of the most basic labour law principles. Once it is established that their services were terminated without adhering to Sections 6E and 6N of the U.P. Industrial Disputes Act, 1947, and that they were engaged in essential, perennial duties, these workers cannot be relegated to perpetual uncertainty. While concerns of municipal budget and compliance with recruitment rules merit consideration, such concerns do not absolve the Employer of statutory obligations or negate equitable entitlements. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period.
18.The impugned order of the High Court, to the extent they confine the Appellant Workmen to future daily-wage engagement without continuity or meaningful back wages, is hereby set aside with the following directions:
I. The discontinuation of the Appellant Workmen‘s services, effected without compliance with Section 6E and Section 6N of the U.P. Industrial Disputes Act, 1947, is declared illegal. All orders or communications terminating their services are quashed. In consequence, the Appellant Workmen shall be treated as continuing in service from the date of their termination, for all purposes, including seniority and continuity in service.
II. The Respondent Employer shall reinstate the Appellant Workmen in their respective posts (or posts akin to the duties they previously performed) within four weeks from the date of this judgment. Their entire period of absence (from the date of termination until actual reinstatement) shall be counted for continuity of service and all consequential benefits, such as seniority and eligibility for promotions, if any.
III. Considering the length of service, the Appellant Workmen shall be entitled to 50% of the back wages from the date of their discontinuation until their actual reinstatement. The Respondent Employer shall clear the aforesaid dues within three months from the date of their reinstatement.
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 long time employees are not indefinitely retained on daily wages contrary to statutory and equitable norms.‖
In Dharam Singh Vrs. State of U.P., (2025) 8 SCR 1026 it has been observed thus:
―9. Moreover, it is undisputed that the nature of work performed by the appellants, i.e., sorting and scrutiny of applications, dispatch and office support, and driving, has been continuous and integral to the Commission‘s functioning since their engagement between 1989 and 1992. The Commission itself moved for sanction of fourteen posts and furnished a list of fourteen daily wagers including the appellants. That consistent internal demand, coupled with uninterrupted utilisation of the appellants‟ labour on regular office hours, fortifies the conclusion that the duties are perennial. To continue extracting such work for decades while pleading want of sanctioned strength is a position that cannot be sustained.
***
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.
***
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 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 a constitutional 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 shall be paid within three months of this Judgement.
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.‖
It is apt to record the anxious consideration shown by the Madras High Court in N. Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016, vide Judgment dated 22.04.2022 rendered with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of the employees, whose services have been utilized by the Government for a substantial length of time:
―18. If the Courts cannot give direction for their regularisation of service, in the constrained legal scenario what other remedies that are available to these unfortunate employees, who have been engaged in service for public purpose, without having any definite future to hold on? These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their concerned yearning for a definite future, with unresponsive indifference.
19.A welfare State grounded on constitutional values, cannot come up with apathetic and callous stand that despite continued employment of these petitioners for years together, no semblance of right is available to them. Such stand by the State is opposed to constitutional values as enshrined in Article 21 of the Constitution of India. The Courts of course have held that equal opportunity must be provided in public employment and entry through back door should be discountenanced. When Article 21, being violated by the State, action towards its servants, the consideration of the Government must primarily be focussed on alleviating legitimate grievances of its employees. Even assuming that the recruitment of these writ petitioners had not been fully in consonance with the procedure for appointment in Government services, the fact remained that these persons have been consciously appointed by the Government for implementing public projects and the work has been extracted from them continuously for several years. It is therefore, not open to the Government after a period of time to turn around and contend that these writ petitioners have no right at all to seek any kind of guarantee for their future.
20.In the opinion of this Court, continued employment for several years, even on a projects meant to serve the State as a whole, certain rights would definitely accrue to them, atleast to the extent of making a claim for formulation of a scheme/towards their absorption. This Court is quite conscious of the fact that the Government has been benevolent and had come up with several schemes in the past and directed regularisation of services of thousands of employees over a period of time. Such benevolence ought to permeate to the lowest levels to take within its sweep the desperate cry of the petitioners as well. As in the sublime words of the father of nation, Mahatma Gandhi, ‗A nation‘s greatness is measured by how it treats its weakest members‘. Merely because these writ petitioners have been employed in the projects, the policy makers may not shut their mind and close their eyes to their precarious plight having to serve public purpose but left in the lurch and unprotected, at the end of the day.‖
In Sheo Narain Nagar Vrs. State of Uttar Pradesh, (2017) 11 SCR 138, the Hon‟ble Supreme Court recognized such employment on temporary status as on exploitative terms. The pertinent observation made in the said case is quoted hereunder:
―8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, l6 read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara Vrs. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Umadevi (supra).
9.Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.
10.The High Court dismissed the writ application relying on the decision in Umadevi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred with effect from 02.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Umadevi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 02.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 02.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.‖
In Prafull Kumar Behera Vrs. State of Odisha, 2025 SCC OnLine Ori 2416 relying on the General Administration Department Resolution dated 17.09.2013, it has been observed as follows:
―8.6. In Sheo Narain Nagar Vrs. State of Uttar Pradesh, (2017) 11 SCR 138, the Hon‘ble Supreme Court recognized such employment on temporary status as on exploitative terms. The pertinent observation made in the said case is quoted hereunder: ***
8.7.It is manifest from record that by now the petitioner Appellant, being appointed by duly authorized Appointing Authority, has completed more than 10 years of service, which is requisite length of service for consideration of regularization in service as per Umadevi (3), (2006) 4 SCC 1 [although the Government of Odisha has accepted six years of satisfactory service for regularization in terms of Resolution dated 17.09.2013 read with Resolution dated 16.01.2014] and the authorities of the Regional Transport Officer employed the petitioner-Appellant and extended his terms in service voluntarily and continuously for more than ten years.‖
Having regard to the legal perspective enunciated in Secretary, State of Karnataka Vrs. Umadevi, (2006) 3 SCR 953 = (2006) 4 SCC 1; State of Karnataka & Others Vrs. M.L. Kesari & Others, (2010) 9 SCR 543 = (2010) 9 SCC 247; Jaggo Vrs. Union of India, (2024) 12 SCR 1235; Shripal Vrs. Nagar Nigam, (2025) 1 SCR 1427; Dharam Singh Vrs. State of Uttar Pradesh, (2025) 8 SCR 1026; Azam Jahi Mill Workers Association Vrs. National Textile Corporation Ltd., (2021) 11 SCR 321 = (2022) 17 SCC 797; Pawan Kumar and Others Vrs. Union of India and Others, 2026 INSC 156; Bhola Nath Vrs. State of Jharkhand and Others, 2026 INSC 99; National Buildings Construction Corporation Vrs. S. Raghunathan, (1998) 1 Supp. SCR 156 = (1998) 7 SCC 66, even if the engagee was not engaged against a sanctioned post the regularisation of service was considered in Sukhendu Bhattacharjee and Others Vrs. The State of Assam and Others, (2026) 6 SCR 539, wherein the following view is expressed by the Hon‟ble Supreme Court of India:
―60. It is a settled principle that equals must be treated equally, and if persons similarly placed are treated differently without a rational basis, it would amount to a violation of Article 14 of the Constitution [Azam Jahi Mill Workers Association Vrs. National Textile Corporation Ltd., (2022) 17 SCC 797]. If two sets of employees stand on the same footing in terms of date of engagement, nature of duties, length of service and eligibility under a declared policy, the State cannot extend a benefit to one large group and deny it to the smaller group without demonstrating a valid distinction. Equality does not allow selective or partial implementation of a policy. Once a policy decision is taken to benefit a defined class, it must be applied uniformly to all who satisfy the prescribed conditions.
61.In the present case, the State itself framed a policy in 2005 to regularize Work Charged and Muster Roll workers engaged prior to 1st April, 1993. Pursuant to the aforesaid policy decision, approximately 30,000 workers were regularized. The appellants belong to that very category. They were engaged prior to the cut-off date and have rendered long and continuous service in the same manner as those who were regularized. There is no distinguishing feature shown which separates them from the beneficiaries of the 2005 decision. Once the State chose to regularize such a large body of workers forming one identifiable class, it was under a constitutional obligation to treat all eligible members of that class alike. The remaining workers who were left out, though otherwise eligible, cannot be excluded and denied the same benefit. It is crucial to note that the exclusion of the appellants from being granted the benefit of the 2005 decision is not attributable to the appellants but is rather predicated in the actions of the State machinery which, on account of inadvertent errors or clerical mistakes, did not include the appellants in the list of beneficiary covered by the said government decision.
62.Recently, in Pawan Kumar and Others Vrs. Union of India and Others, 2026 INSC 556 this Court considered a similar situation wherein certain employees had been regularized but others, though similarly placed, were left out. This Court held that such differential treatment was discriminatory and accordingly granted the same relief to the excluded employees.
63.Once the State confers a benefit upon a particular class, it cannot arbitrarily deny the same benefit to others who are identically situated. Applying the principle in the present case, the State, having regularized nearly 30,000 workers under its own policy decision, could not refuse to regularize the remaining eligible workers who stood on the same footing. To do so amounts to treating equals unequally, which is impermissible under Article 14 of the Constitution.
***
67.The conduct of the State must also be examined in light of its status as a model employer. The State is under a higher constitutional obligation to ensure that its actions are just, reasonable and non-arbitrary. Recently, this Court in Bhola Nath Vrs. State of Jharkhand and Others, 2026 INSC 99 reiterated that the State, as a model employer, bears a heightened constitutional obligation in the discharge of its functions. It must act with probity, fairness and candour, and cannot cloud the disputes involving its employees under narrow technical grounds divorced from their broader constitutional context. A model employer is expected to uphold the dignity of its employees more so who are at the lowest pedestal of the hierarchy and to avoid exploiting their vulnerability or precarious position. This obligation flows directly from the Constitution and is not discretionary. Constantly giving undertakings before a constitutional Court and thereafter resiling from them does not comport with the standards expected of a model employer. An undertaking recorded by a Court is not a casual statement, but is a solemn representation on the basis of which judicial orders are passed. The State cannot approbate and reprobate. It cannot, on the one hand, secure time and indulgence from the Court on the assurance that a policy will be implemented and, on the other, avoid implementation by citing precedents that were already in existence at the time the undertakings were furnished.
68.The repeated undertakings given by the State before the High Court, coupled with the earlier implementation of the Cabinet decision in favour of nearly 30,000 similarly situated workers, clearly gave rise to a legitimate expectation in the minds of the appellants who were deprived of the benefits of the policy. In the maze of administrative deficiencies, they were entitled to expect that the policy decision would be implemented in a fair, complete and non-discriminatory manner, and that their cases would also be considered as part of the same exercise. Though legitimate expectation does not create a vested right, it is firmly rooted in the principles of fairness and non-arbitrariness that flows from Article 14 of the Constitution.
***
76.What emerges from the principles enunciated in the aforesaid decisions6 is that the State cannot rely upon the mere form of engagement to deny fair and equitable treatment to employees who have served it for long years. The consistent thread running through these judgments is that Umadevi (supra) cannot be invoked as a blanket barrier to justify prolonged and continued engagements of a temporary or ad hoc nature, especially where the employees have been discharging essential and recurring functions of the State. The Court has repeatedly emphasised that the distinction between “illegal” and “irregular” appointments must be kept in view, that long and continuous service is a relevant consideration, and that the State, as a model employer, is under a constitutional obligation to act with fairness, consistency and reasonableness. The practice of retaining employees for decades under deceptively titled designations, while simultaneously extracting regular work integral to the administration, has been disapproved consistently.‖
A Division Bench of this Court in the matter of State of Odisha and Another Vrs. Bijaya Kishore Nath and Others, W.A. No.2629 of 2024, vide Judgment dated 08.07.20257, while affirming the view expressed by a learned Single Bench in the case of Bijay Kishore Nath and Others Vrs. State of Odisha and Others, 2024 SCC OnLine Ori 1995 having taken note of the Government Resolution dated 17.09.2013, observed as follows:
―Above apart, where the State policy provides for certain rights regardless of statutory support, the violation of such a policy gives a choate cause of action. The State itself having promulgated such a policy holding it to the public at large, cannot mindlessly invoke the ratio in Umadevi supra as priest would chant mantra. The very existence of such policy takes the case of respondents away from the precincts of said decision. It need not be stated that a small difference in fact matrix of a case may render a decision inapplicable.‖
It does emanate from record that by now the respondent no.1, being appointed by duly authorized Appointing Authority, has completed more than 10 years of service, which is requisite length of service for consideration of regularization in service as per Umadevi (3), (2006) 4 SCC 1 [although the Government of Odisha has accepted six years of satisfactory service for regularization in terms of Resolution dated 17.09.2013 read with Resolution dated 16.01.2014] and the Collector, Nuapada employed the respondent no.1 and proposed for regularization in service and, in fact, regularized vide Office Order dated 12.12.2013 (Annexure-E/4 of the counter affidavit), but for intervention of the Finance Department. The Collector, Nuapada by Letter dated 04.09.2014 (Annexure-G/4) having responded positively by making unambiguous statement that the respondent No.1 was appointed after following due process he could not have filed the counter affidavit asserting facts contrary to what is contained in the said letter addressed to the Finance Department. To the query of the Deputy Secretary to the Government in Finance Department vide Letter dated 25.06.2014 (Annexure-F/4) that “whether mandatory eligibility conditionalities prescribed by the General Administration Department have been followed with regard to the regularization of services of Sri Dwitiya Bhoi for further action” notwithstanding clear reply was proffered by the Collector, Nuapada in his Letter dated 04.09.2014 that the respondent No.1 was appointed as contractual peon vide Office Order No.121, dated 16.10.2007 by observing the formalities and guidelines stipulated in Resolution No.26108/Gen, dated 17.09.2013, the High Power Committee could not have unilaterally revoked the regularization of the respondent No.1 in service. It is asserted by Ms. Saswati Mohapatra, learned Advocate in course of hearing that the respondent No.1 even after revocation was not restrained from discharging his duty as peon in the office. To buttress such fact she cited Office Orders dated 26.06.2019, 07.04.2020, 01.06.2021 and 13.04.2022 (Annexure-11 series enclosed with Affidavit dated 16.05.2024 filed by the Deputy Director, Savings and Financial Services-cum-Deputy Secretary to Government, Finance Department). The learned Additional Government Advocate drew attention of this Court to a Letter No.79, dated 27.03.2024 issued by the Collector, Nuapada addressed to the Joint Director, S&FS-cum-Joint Secretary to Government in Finance Department to indicate that the respondent No.1 has been “disengaged from his service from 01.03.2023 vide Department Letter No.7738, dated 10.03.2023”. It is, thus, unambiguous that since 16.10.2007, year of appointment, till 01.03.2023 the respondent No.1 had been working in the Office of the Collector & District Magistrate, Nuapada (Small Savings Section) for more than fifteen years.
CONCLUSION & DECISION:
As discussed above, taking into consideration the sequence of events obtained on record, this Court is persuaded to hold that the respondent No.1 has been working since 2007 against sanctioned post and he continued to work as peon on contractual basis in such sanctioned post till 2023. The respondent no.1/writ petitioner should not have been kept on the tenterhooks of employment for years together, by brushing aside and discarding his concerned yearning for a definite future, with unresponsive indifference.
This Court has considered the case of the respondent No.1, who on earlier occasion filed W.P.(C) No.17338 of 2022 with a prayer to direct the appellant to regularize the services of the respondent No.1 with effect from the year 2013, on completion of 6 (six) years of contractual service, with all consequential and monetary benefits, and vide Order dated 28.07.2022 observed that since the employee had already completed more than 14 years of contractual engagement, the appellant herein was required to take appropriate steps for absorption of the respondent No.1 in the regular establishment taking into account the Resolution governing the field and the decision of this Court in the case of Patitapaban Dutta Dash (supra). In pursuance of such direction, while considering the representation of the respondent No.1, the appellant acted with no authority and disobeyed by not following the guidelines laid down in said decision inasmuch as the Order dated 28.07.2022 has attained finality between the appellant and the respondent Nos.2 to 4 (pro forma respondents) and the respondent No.1, being not challenged. Mere pendency of writ appeal against the Judgment in Patitapaban Dutta Dash (supra) at the time of consideration of representation in compliance of direction in Order dated 28.07.2022 would not give occasion for the appellant-authority not to follow the rule of law.
Letter dated 18.11.2022 of the Government of Odisha in Finance Department addressed to Collector, Nuapada (Annexure-10 enclosed to the writ petition) stating that “compliance to the Order dated 28.07.2022 passed by the Hon‟ble High Court of Orissa in W.P.(C) No.17338 of 2022 filed by Sri Dwitiya Bhoi, Contractual Peon, Small Savings Section, Nuapada” is not only misleading and misdirected, but also calculated to undermine the direction of this Court contained in the said Order. Nothing is placed on record by the learned Additional Government Advocate to suggest that said Order dated 28.07.2022 has been questioned before the appropriate forum/Court. Therefore, in the considered view of this Court, the appellant had no authority not to follow the direction to consider the case of the respondent No.1 taking into account the Resolution as well as the decision in Patitapaban Dutta Dash (supra).
In the present case, high ranked officers of the Government are at the helm of affairs upon whom depended the fate of contractual employees. For their faulty decision and indifference attitude, an employee like the respondent No.1 who served the Small Savings Section of the Collectorate, Nuapada for more than 15 years has been disengaged at the whims and fancy. This Court says so, because by a terse order of one sentence using words “continuance of contractual peon in the Small Savings Section of your Collectorate is regretted” the regularisation in service of the respondent No.1 was taken away. Not only there has been violation of principles of natural justice, but also the direction of this Court has been thrown into winds. This Court deprecates such an attitude and non-application of mind of functionaries of the Government of Odisha in view of principles culled out by this Court in the case of Orissa Power Generation Corporation Ltd. Vrs. State of Odisha, AIR 2015 Ori 128 = 2015 (II) ILR-CUT 909 = 2015 SCC OnLine Ori 90 with a caveat as follows:
―We are afraid to notice that even though the petitioner has filed a written submission in course of the assessment proceeding as evident from the impugned assessment order relying on various statutory provisions, the Supreme Court judgments, judgments of the High Court in support of its contention, the Assessing Authority without dealing with the contention of the petitioner with reference to the judgments relied upon by it passed the assessment order raising huge tax and penalty amounting to Rs.7,22,44,608/-. Thus, the impugned order shows complete non-application of mind which ultimately amounts to judicial indiscipline and impropriety. The Assessing Authority, who is Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur, being a fairly senior officer is always expected to take note of various decisions of the Hon‘ble Supreme Court/High Court placed before him by the assessee before passing any order. It may not be appropriate to say that competent and efficient Assessing Authorities are to be posted because the fate of litigants is dependent upon their proper adjudication.‖
The Hon‟ble Supreme Court has not disturbed said reported Judgment of this Court in Orissa Power Generation Corporaation Ltd. (supra) while dismissing the special leave petition filed at the behest of the State of Odisha.
Thus, in the same vein as that has been observed by this Court in the case of Orissa Power Generation Corporation Ltd. (supra), it is, therefore, held that the Letter No.7738—FIN-SMS-SS-0064/2012/F. dated 10.03.2023 issued by the DDSS&FI-cum-Deputy Secretary to Government of Odisha in Finance Department taking away the job of contractual employee by mere ipse dixit that “further continuance of contractual peon in the Small Savings Section of your Collectorate is regretted” is untenable, unconscionable and consequent action taken thereby is not justiceable.
It has also been noticed that even though the Collector, Nuapada has revoked the regularization of service of the respondent No.1 until further orders of the Finance Department vide Order dated 10.01.2015 (Annexure-I/4 to the counter affidavit in the writ petition), the employee was allowed to continue till 28.02.2023 (Annexure-12 enclosed with the Affidavit dated 16.05.2024 sworn to by Deputy Director, Savings and Financial Services-cum-Deputy Secretary), whereas by Letter dated 10.03.2023 the Finance Department vide Annexure-D/4 to the counter affidavit intimated that “continuance of contractual peon in the Small Savings Section” of the Collectorate “is regretted”. Such a letter of regret without verifying material on record cannot be held to be proper and justified inasmuch as while taking decision to comply with the direction of this Court vide Order dated 28.07.2022 passed in W.P.(C) No.17338 of 2022, the Government of Odisha in Finance Department could not have defied to take into account the decision rendered in Patitapaban Dutta Dash (supra) on the specious premise that the referred decision was under challenge in intra-Court appeal. When it is admitted that against sanctioned post the respondent No.1 was continuing, the High Power Committee should have taken conscientious decision based on terms of Resolution dated 17.09.2013, but not with reference to the Resolution dated 16.01.2014. The learned Additional Government Advocate could not improve the case of the appellant by referring further to the Odisha Group-„B‟, „C‟ and Group-„D‟ Posts (Repeal and Special Provisions) Rules, 2022.
In such view of the matter, the basis of decision vide Letter No.28529—FIN-SMS-SS-0031/2022/F., dated 18.11.2022 (vide Annexure-10 to the writ petition) pursuant to which the respondent No.1 has been deprived of regularisation and denied extension of contractual engagement does not exist in view of the fact that the appeal in W.A. No.777 of 2021 along with batch of writ appeals has been disposed of on 12.04.2023 by a Division Bench of this Court [Vide, 2023 (I) ILR-CUT 906], and subsequently said judgment is not disturbed by the Hon‟ble Supreme Court of India.
This Court finds force in the contention of Ms. Saswati Mohapatra, learned Advocate drawing attention of this Court to the observations made by the learned Single Judge. The impugned Order shows that “while revoking the order, no opportunity was also provided to the petitioner (respondent No.1) to put forth the same before the authorities”. Therefore, this Court is inclined to confirm the view expressed by the learned Single Judge who showed indulgence in the decision of the High Power Committee as also the order revoking regular appointment by the Collector, Nuapada, so also the letter of regret.
One of the grounds which was pressed into service by the learned Additional Government Advocate that the conditions stipulated in the General Administration Department Resolution No. 26108—GAD-SC-Rules-0009-2013/Gen., dated 17.09.2013 read with Resolution No.1066—GAD-SC-Rules-0009-2013/Gen., dated 16.01.2014 could not be said to have fulfilled by the respondent No.1 so as to consider his case for regularisation of service.
This Court has already observed that the decision of the High Power Committee is fallacious as it could not have taken the conditions stipulated in Resolution No.1066— GAD-SC-Rules-0009-2013/Gen, dated 16.01.2014 for the reason that the Collector, Nuapada has considered completion of six years of service rendered by the employee in terms of Resolution No. 26108—GAD-SC-Rules-0009-2013/Gen., dated 17.09.2013 and issued Office Order No.66, dated 12.12.2013 appointing the respondent No.1 “as peon regularly with effect from 16.10.2013”. Thus, the decision taken unilaterally by the High Power Committee taking into consideration conditions stipulated in the Resolution dated 16.01.2014 is not appreciated.
The Resolution dated 17.09.2013 is relevant for the present purpose as it is applicable to “existing contractual Group C and Group D employees who are not holding any post” in contravention of any statutory recruitment rules or executive instructions. As the respondent No.1 was appointed against sanctioned post and the Collector, Nuapada-appointing authority has, considered regularization of service of the employee taking into account the conditions laid in Resolution No. 26108—GAD-SC-Rules-0009-2013/Gen., dated 17.09.2013 and issued letter on 12.12.2013 appointing the employee “regularly”, it is manifest that on that date Resolution dated 16.01.2014 did not see the light of the day. Such fact has clearly been reflected in his Letter dated 04.09.2014 (Annexure-G/4 of the counter affidavit to the writ petition).
It could not be demonstrated by the learned Additional Government Advocate that the condition for consideration of regularization of service laid in Resolution, dated 17.09.2013 has been deviated/ contravened by the Collector, Nuapada. This Court takes note of the fact as affirmed by the Collector, Nuapada at paragraph 4 of his counter affidavit filed in the writ petition that,
―The petitioner (respondent No.1 herein) submitted application for the post of peon along with relevant documents on 11.10.2007 and prayed for his appointment. Basing on his application, the Collector, Nuapada, i.e., opposite party No.3 has been pleased to appoint the petitioner as peon in District Small Savings Office, Nuapada on temporary basis vide Order No.121, dated 16.10.2007.‖
Such a fact dispels doubt about recruitment process being conducted by the Collector, Nuapada. Nonetheless, even if it is assumed that the respondent No.1 has not faced the recruitment process, such an appointment could be treated as “irregular”, but not “illegal” in view of parameters laid down in Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716.
As already held in the foregoing paragraphs that there was no scope for the appellant to defy the terms of Order dated 28.07.2022 passed in W.P.(C) No.17338 of 2022 qua the respondent No.1 read with Order dated 10.02.2023 passed in CONTC No.633 of 2023, as the said orders, being not challenged before the higher fora, have attained finality between the Government of Odisha/appointing authority vis-‡-vis respondent No.1-employee on the principle as expounded in Orissa Power Generation Corporation (supra).
Therefore, the argument advanced by the learned Additional Government Advocate stemming on Resolution dated 16.01.2014 and subsequent Notification dated 16.10.2022, i.e., the Odisha Group B, C and Group D Posts (Repeal and Special Provisions) Rules, 2022, is hereby repelled.
In fine, this Court does not find any infirmity nor illegality in the Order dated 11.08.2023 passed in W.P.(C) No.7974 of 2023 by the learned Single Judge of this Court, but in the circumstances, there shall be no order as to costs.
MANASH RANJAN PATHAK, J.— I agree.
Footnotes
- 1.2021 SCC OnLine Ori 2534.
- 2.2023 (I) ILR-CUT 906.
- 3.The term “INITIAL APPOINTEE” has been defined in Rule 2(d) of the Odisha Group „B‟, „C‟ and Group „D‟ Posts (Repeal and Special Provisions) Rules, 2022 to mean ―the persons appointed under the Odisha Group ‗B‘ Posts (Contractual Appointment) Rules, 2013 and the Odisha Group ‗C‘ and Group ‗D‘ Posts (Contractual Appointment) Rules, 2013‖.
- 4.Rule 2(b) of the Odisha Group „B‟, „C‟ and Group „D‟ Posts (Repeal and Special Provisions) Rules, 2022 defines the term “CONTRACTUAL RULES” to mean ―the Odisha Group ‗B‘ Posts (Contractual Appointment) Rules, 2013 and the Odisha Group ‗C‘ and Group ‗D‘ Posts (Contractual Appointment) Rules, 2013‖.
- 5.The position of Patitapaban Dutta Dash Vrs State of Odisha & others, 2021 SCC OnLine Ori 2534 is that, the judgment of learned Single Judge being confirmed by Division Bench of this Court vide State of Odisha Vrs. Patitapaban Dutta Dash, 2023 (I) ILR-CUT 906, the matter was further carried before the Hon‟ble Supreme Court of India by the State of Odisha, which also stands dismissed by Order dated 12.11.2025.
- 6.Bhola Nath Vrs. State of Jharkhand, 2026 SCC OnLine SC 129; Jaggo Vrs. Union of India, (2024) 1 SCR 1230 = (2024) 9 SCC 327, Shripal Vrs. Nagar Nigam, (2025) 1 SCR 1427; Dharam Singh Vrs. State of Uttar Pradesh, (2025) 8 SCR 1026.
- 7.The Hon‟ble Supreme Court of India passed following Order on 06.02.2026 vide Special Leave Petition (Civil) Diary No(s).71330 of 2025 (State of Odisha Vrs. Bijaya Kishore Nath): ―1. Delay condoned. 2. Having heard learned counsel for the petitioners, we are not inclined to entertain these Special Leave Petitions and the same are, accordingly, dismissed. 3. Pending application(s), if any, shall stand disposed of.‖