Orissa High Court

Afr Patitapaban Dutta Dash And Others vs State Of Odisha & Others ..... Opp. ... on 9 September, 2021

Author:
B.R.Sarangi

Bench:
B.R.Sarangi

ORISSA HIGH COURT: CUTTACK

W.P.(C) NO. 19951 OF 2020

In the matter of an application under
Article 226
of the
Constitution of India.
---------------

AFR Patitapaban Dutta Dash and others ..... Petitioners

-Versus-

State of Odisha & others ..... Opp. Parties

For Petitioners : M/s. B.S. Tripathy-1,
A. Tripathy & A. Sahoo,
Advocates.

For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing : 02.09.2021 :: Date of judgment: 09.09.2021

DR. B.R. SARANGI, J. The petitioners, who are working

as Data Entry Operators in various Tahasils of Cuttack

district, have filed this writ petition seeking direction to

the opposite parties to issue a formal letter of

Page 1 of 50

regularization on completion of six years of contractual

service in the scale of pay of PB-1 Rs.5200-20200/- +

Grade Pay of Rs.1900/- with usual allowance

admissible from time to time, as per GA Department

Resolution dated 17.09.2013 under Annexure-10 read

with the law laid down by the apex Court in the case of

State of Karnataka v. Umadevi
(
3), (2006) 4 SCC 1,

State of Karnataka v. M.L. Keshari
, (2010) 9 SCC

247 as well as the order dated 07.08.2020 of this Court

in W.P.(C) No. 17937 of 2020 (
Susanta Sethi vs. State

of Odisha & Ors.
) in the same manner as has been

allowed to similarly situated contractual Data Entry

Operators in Annexure-11 series, by making a

declaration that the decision of the Government taken

on 16.03.2020 in Annexure-17 as well as Finance

Department Office Memorandum dated 07.07.2020 in

Annexure-19 have no application to the present

context.

Page 2 of 50

2. The factual matrix of the case, in a

nutshell, is that the Government of Odisha in Revenue

and Disaster Management Department vide letter dated

24.11.2006 conveyed the sanction and creation of 600

posts of Data Entry Operators-cum-Assistants to be

engaged in different districts by the Collectors to render

assistance for preparation and distribution of Land

Pass Books for a period of six months with a

remuneration of Rs.4000/- per month as per the

eligibility criteria and the manner prescribed therein.

So far as the Cuttack district is concerned, the number

of Data Entry Operators-cum-Assistants was prescribed

as 48.

2.1 In order to fill up such posts, an

advertisement was issued in newspaper and through

notice in District Office, Cuttack and request was made

to the District Employment Exchange, Cuttack to

sponsor the names of candidates having Graduation /

Post Graduation with DCA /PGDCA qualification for the

Page 3 of 50

purpose of being shortlisted for being appointed as

Data Entry Operators-cum-Assistants in various

Tahasils of Cuttack district. Consequentially, the

petitioners, along with 150 other candidates, were

shortlisted and they were asked to appear in the written

test. Thereafter, a computer test was held on

31.01.2008 in the Conference Hall of the Collectorate,

Cuttack by issuing call letters to the individual

candidates on 24.01.2008 by the ADM, Cuttack -cum-

Vice Chairman, District Level Selection Committee,

Cuttack. By following due procedure of selection, the

petitioners were selected and also appointed as Data

Entry Operators-cum-Assistants in various Tahasils of

Cuttack district. Though they were initially appointed

for a period of six months, but they were allowed to

continue by extending the period from time to time and

are continuing till date. As such, they have already

been allowed grade pay of Rs.1900/- per month w.e.f.

12.08.2014, vide letter dated 21.01.2015, and also

Page 4 of 50

allowed the enhanced consolidated remuneration by

revising the same to Rs.8,880/-, which was inclusive of

ESI/EPF dues of the employer share w.e.f. 01.09.2017.

2.2 The opposite party no.1, vide letter dated

03.05.2012, communicated the copy of the minutes of

meeting recording the decision taken by the Chief

Secretary on 28.04.2012 on the issue of regularization

of contractual Data Entry Operators engaged in

Tahasils, where the following decisions were taken.

"(i) Data Entry Operators engaged on
contractual basis in Tahasils should continue
and should not be disengaged till a decision
regarding regularization is finalized.

(ii) Govt. is contemplating to frame policy on
regularization of contractual Data Entry
Operators in various Departments.

(iii) The Policy so framed shall be applicable
to those Data Entry Operators."

2.3. Accordingly, the Government of Odisha

promulgated a policy for regularization of services of

existing contractual Group-C and Group-D employees

working under the State Government vide GA

Department Resolution dated 17.09.2013. It has been

Page 5 of 50

stated that for regular appointment, a gradation list of

such contractual employees shall be prepared by the

appointing authority on the basis of their date of

appointment and regular appointment of those

categories of contractual employees shall be made on

the date of completion of six years of service or from the

date of publication of the said resolution, whichever is

later, in the order in which their names appear in the

gradation list prepared under Para-1 of such policy. The

period of six years shall be counted from the date of

contractual appointment prior to publication of the said

resolution. In para-2 thereof, it was further provided

that on the date of satisfactory completion of six years

of contractual service or from the date of publication of

such resolution, whichever is later, they shall be

deemed to have been regularly appointed and a formal

order of regular appointment shall be issued by the

appointing authority. Consequently, upon regular

appointment under the contractual post, if any, shall

Page 6 of 50

get re-converted to regular sanction post. In case the

person concerned has crossed the upper age limit, the

appointing authority shall allow relaxation of upper age

limit. Subsequently, the Government of Odisha in G.A.

Department issued another resolution on 16.01.2014

expressly clarifying resolution of the GA Department

dated 17.09.2013 that proposal for regularization shall

be considered and approved by the High Power

Committee to be constituted under the chairmanship of

the concerned department.

2.4 Basing upon such resolution dated

17.09.2013, various other departments of the

Government have already regularized Data Entry

Operators in their respective posts in PB-I Rs.5200-

20000/- with GP Rs.1900/- and/or Rs.2400/-. Such

benefit has been extended pursuant to order dated

17.05.2017 passed by the Odisha Administrative

Tribunal in the case of
Jatin Kumar Das vs. State of

Odisha
in O.A. No. 2172 (C) of 2015 and batch, which

Page 7 of 50

has been upheld by this Court on 10.05.2018 in WP(C)

No. 6661 of 2018 and also by the apex Court on

06.08.2018 by dismissing SLP No. 18642 of 2018

preferred by the State of Odisha. Consequent upon the

judgment of the tribunal, the Data Entry Operators

working in the CT organization, Higher Education

Department, Department of Tourism & Culture, Dean &

Principal, SCB Medical College and Hospital, Cuttack

and office of the Collector, Cuttack have been

regularized vide Annexure-11 series.

2.5 In the meantime, though G.A.

Department formulated Odisha Group-„C‟ and Group-

„D‟ Posts (Contractual Appointment) Rules, 2013, but

the same have no application to the cases covered

under G.A. Department Resolution dated 17.09.2013.

But while granting extension to the contractual

appointments of the petitioners for a further period of

six months, i.e. up to 28.02.2020, the opposite party

no.1, vide letter dated 26.09.2019, made a stipulation

Page 8 of 50

that "or till completion of the process of recruitment and

appointment against 692 posts of Junior Clerks created

for Tahasils and Sub-Division Officers, whichever is

earlier."

2.6 In the meantime, vide G.O. No. 6289 of

24.02.2016 the opposite party no.1 had conveyed

sanction for creation of 692 posts of Junior Clerks in

317 Tahasils of the State in lieu of abolition of equal

number of vacant posts in Survey & Settlement

organization of Board of Revenue with clear indication

that the posts would be created and would be required

for regularization for DEOs engaged on contractual

basis in all the Tahasils of the State. All the petitioners

have completed six years of contractual services.

Therefore, their services are deemed to be regularized

by issuing formal letters of regularization. But the

opposite parties having not taken any steps for

communication of the formal letters of regularization,

the petitioners approached the Odisha Administrative

Page 9 of 50

Tribunal by filing Original Applications and the

petitioner no.1, who was also petitioner no.1 in O.A.

No.554 (C) of 2018 filed W.P.(C) No. 3678 of 2020,

which was disposed of on 03.02.2020 stating inter alia

"considering the submissions made and looking into

consideration the development through Annexure-5 this

Court finds Annexure-7 should be processed to

accommodate the persons for whom the vacancies have

been arisen, vide Annexure-5." In view of such order of

this Court, the petitioner no.1 submitted representation

before the Collector and District Magistrate, Cuttack

with a prayer for compliance of the direction of this

Court and for consideration of their cases for

regularization by issuing a formal order of

regularization as per GA Department Resolution dated

17.09.2013 on completion of six years of contractual

service against the sanctioned posts they were

continuing. By order dated 19.05.2020, the opposite

party no.1 allowed extension of term of contractual

Page 10 of 50

appointment of the 600 DEOs working in different

Tahsils in the State, including the present petitioners,

on the same terms and conditions as indicated earlier

for a further period of six months from 01.03.2020 to

31.08.2020.

2.7 Meanwhile, Finance Department took a

decision on austerity measure due to Covid-19 and

issued office memorandum dated 07.07.2020 stating

that the persons who are engaged on outsourcing basis,

are to be paid their entitlement as per the terms and

conditions of the engagement till contract period ends.

If the contract period ends within the lock down period,

then the entitlement to be paid till the end of the

contract period. Thereby, instead of regularizing the

services by issuing a formal letter of regularization in

terms of resolution dated 17.09.2013, extension was

given to the petitioners, who are rendering service as

Data Entry Operators on contractual basis and have

already completed more than six years of service.

Page 11 of 50

Therefore, they approached this Court by filing this writ

petition, which was disposed of, vide order dated

20.08.2020, which runs as follows:

"This matter is taken up through Video
Conferencing.

Heard Sri Tripathy, learned counsel for the
petitioners and Sri Panda, learned Additional
Government Advocate for the State-opposite
parties.

The petitioners have filed this application
seeking for a direction to the opposite parties to
regularize their services taking into account their
continuous service of more than 8 years, as has
been done in favour of the other similarly
situated persons as per Government Circular
and in terms of the principle decided in

Secretary State of Karnataka and Others v.
Umadevi
(3) and Others (2006) 4 SCC 1 and in
State of Karnataka & others Vrs. M.L.
Kesari & others involving SLP(C)
No.15774/2006.

Learned counsel for the petitioners submits
that the petitioners were engaged on monthly
remuneration basis. They have already
rendered more than 8 years of service under the
opposite parties and therefore, seeks for
regularization of services in view of the
judgment passed by the Hon‟ble apex Court in

Secretary State of Karnataka and others v.
Umadevi
(3) and others (2006) 4 SCC 1 and in
State of Karnataka & others Vrs. M.L.
Kesari & others involving SLP(C)
No.15774/2006.

Considering the contentions raised by the
learned counsel for the petitioners and after
going through the records, it appears that the
petitioners have rendered service for more than
8 years on monthly remuneration basis.
Therefore, the case of the petitioners is squarely
covered by the ratio decided in the cases cited

Page 12 of 50

supra.
In that view of the matter, this Court
disposes of this Writ Petition directing the
opposite parties to consider the case of the
petitioners and regularize their services keeping
in view the judgment in the case of
Secretary
State of Karnataka and others v. Umadevi

(3) and others (2006) 4 SCC 1 and in State of
Karnataka & others Vrs. M.L. Kesari &
others involving SLP(C) No.15774/2006 and
also the resolution of the G.A. Department dated
17.09.2013, within a period of four months from
the date of communication of a copy of this order
by the petitioners and grant consequential
service benefits as due admissible to them.

It is further directed that in the event the
petitioners are still continuing in their service,
status quo as on today in respect of the services
of the petitioners shall be maintained till a
decision is taken in the matter by the opposite
parties in terms of the above direction.

As Lock-down period is continuing for
COVID-19, learned counsel for the petitioners
may utilize the soft copy of this order available
in the High Court‟s website or print out thereof
at par with certified copies in the manner
prescribed, vide Court‟s Notice No.4587, dated
25.03.2020.

Sd/- Biswanath Rath, J"

Aggrieved thereby, the State preferred W.A. No. 298 of

2021 and the Division Bench of this Court, by order

dated 17.06.2021, disposed of the same in the following

terms :-

"1. This matter is taken up by video
conferencing mode.

2.
In this writ appeal, the Appellants (State of
Odisha) challenge the order dated 20th August,
2020 passed by the learned Single Judge in

Page 13 of 50

W.P.(C) No.19951 of 2020 directing the
Appellants to regularize the services of the
Respondents in light of the judgment in
State of
Karnataka and Others v. Umadevi
(
3)
(2006) 4 SCC 1 and State of Karnataka &
others v. M. L. Kesari
(2010) 9 SCC 247.

3. Notice. Mr.B.S.Tripathy, Advocate accepts
notice for the Respondents.

4. Mr. A.K. Parija, learned Advocate general
points out that the impugned order was passed
on the very first date of listing of the writ
petition and was disposed of without notice
being issued to the Appellants herein.

Accordingly, there was no occasion for the
Appellants to even file a counter affidavit after
verifying the factual averments in the petition.
Mr. Parija points out that the writ petition was
disposed of by simply following an earlier order
of the learned Single judge of similar nature
which too was passed on the very first date. He
further points out that in some of the petitions
even the correct Department of the Government
was not impleaded as party.

5. Mr.B.S.Tripathy, learned counsel for the
Respondents appearing on caveat, does not
dispute that the writ petition was disposed of on
the very first date of listing without notice to the
Appellants and without any opportunity to them
to file a counter affidavit.

6. On the above short admitted ground, this
Court is of the view that the impugned order
should be set aside and the matter remanded to
the learned Single Judge for a fresh disposal on
merits after completion of pleadings.

7. Accordingly, with the consent of learned
counsel for the Respondents, the impugned
order dated 20th August, 2020 passed by the
learned Single Judge in W.P. (C) No.19951 of
2020 is hereby set aside with the following
directions:

(i) W.P. (C) No.19951 of 2020 is restored to the
file of the learned Single Judge and shall be

Page 14 of 50

listed before the learned Single Judge for
directions on 19th July, 2021.

(ii) By the aforementioned date, the State of
Odisha shall file their para-wise reply to the
aforementioned writ petition.

(iii) The Respondents herein i.e. the Writ
Petitioners shall be given an opportunity by the
learned Single Judge to file a rejoinder to the
above affidavit in a time-bound manner. In any
event the pleadings in the writ petition shall be
completed not later than 31st August, 2021.

(iv) The learned Single Judge is requested to
endeavour to dispose of the writ petition on
merits not later than 8th November, 2021.

(v) Till the disposal of the writ petition, the
status quo as to the services of the Respondents
shall be maintained.

8. The writ appeal is disposed of in the above
terms.

9. As the restrictions due to resurgence of
COVID-19 situation are continuing, learned
counsel for the parties may utilize a printout of
the order available in the High Court‟s website,
at par with certified copy, subject to attestation
by the concerned advocate, in the manner
prescribed vide Court‟s Notice No.4798, dated
15th April, 2021.

(Dr. S. Muralidhar)
Chief Justice

(Savitri Ratho)
Judge"

In view of the above quoted order of the Division Bench,

the order dated 20.08.2020 passed by the learned

Single Judge having been set aside, this writ petition

was assigned to this Court for its fresh disposal in

Page 15 of 50

accordance with the directions contained in para-7 of

the order passed by the Division Bench.

3. Mr. B.S. Tripathy-1, learned counsel for

the petitioners contended that the petitioners have been

appointed against regular vacancies and/or sanctioned

posts by following due procedure of selection and, as

such, they have not entered into service through

backdoor method, and in the meantime, they have

completed more than 6 years of service. In view of the

G.A. Department resolution dated 17.09.2013, on

completion of six years of service, they are deemed to be

regularized and consequentially orders of regularization

have to be issued in their favour by the authorities.

But due to non-issuance of formal order of

regularization, the petitioners are deprived of their

legitimate claim, even though they are continuing as

Data Entry Operators with the scale of pay admissible

to the said post. It is further contended that the

petitioners had been appointed in the year 2008 against

Page 16 of 50

sanctioned post. By the time the resolution came i.e.,

on 17.09.2013, although they had not completed six

years of service, but subsequently, they having fulfilled

the said criteria, as a matter of policy decision, they

should have been regularized as Data Entry Operators.

It is further contended that the resolution so passed,

having been implemented in other departments, non-

extension of benefits of such resolution to the

petitioners amounts to discrimination. It is contended

that office memorandum dated 07.07.2000 is not

applicable to the petitioners, and that by now since the

petitioners have completed more than ten years of

service against sanctioned posts, their services have to

be regularized in terms of the judgments of the apex

Court in
State of Karnataka vs. Umadevi
(
3), (2006)

4 SCC 1, State of Karnataka vs. M.L. Keshari
,

(2010) 9 SCC 247;
Amarkant Rai vs. State of Bihar
,

(2015) 8 SCC 265;
Sheo Narain Nagar & Ors. vs.

State of Uttar Pradesh & Ors.
, AIR 2018 SC 233;

Page 17 of 50

Rajnish Kumar Mishra vs. State of Uttar Pradesh
,

2019 (17) SCC 648;
Jatin Kumar Das vs. State of

Odisha and others
(O.A. No. 2172 (C) of 2015 and

batch, disposed of on 17.05.2017), which has been

upheld by this Court in W.P.(C) No. 6661 of 2018, vide

order dated 10.05.2018 and also by the apex Court in

Special Leave to Appeal (C) No. 18642 of 2018, disposed

of on 06.08.2018; Biswamitra Parida & another vs.

State of Odisha and another (W.P.(C) No. 22112 of

2020 disposed of on 03.09.2020) which was confirmed

in W.A. No. 822 of 2020 by the Division Bench of this

Court on 10.02.2021 and also in Special Leave to

Appeal No. 6851 of 2021 by the apex Court on

30.06.2021; and
Rajendra Kumar Nayak vs. Orissa

Mining Corporation Ltd. & Ors.
2017 (II) ILR -CUT-

912.

4. Per contra, Mr. H.M. Dhal, learned Addl.

Government Advocate argued with vehemence

contending that the petitioners, who are working as

Page 18 of 50

Data Entry Operators, have filed this writ petition with

a prayer to issue a writ in the nature of mandamus to

regularize their services. One of the pre conditions for

exercising power under
Article 226
of the Constitution

of India for issuance of writ of mandamus is that the

Court must come to the conclusion that the aggrieved

person has a legal right which entitles him to any of the

reliefs, and that such right has been infringed. It is

further contended that the claim of the petitioners for

regularization of their service in accordance with the

G.A. Department Resolution dated 17.09.2013 on

completion of 6 years of service is not automatic and

such resolution has been clarified by subsequent

resolution dated 16.01.2014, which provides that no

contractual appointee shall be eligible for regular

appointment unless the mandatory eligibility conditions

prescribed in the resolution dated 17.09.2013 are

fulfilled. In paragraph-2 of the resolution dated

Page 19 of 50

16.01.2014, it has been specifically mentioned as

follows :-

"A part from the contractual employees fulfilling
the conditionalities elucidated in para 1 above,
there are other categories of contractual
employees engaged with or without creation of
posts with the concurrence of Finance
Department, without following the relevant
recruitment and reservation Rules. There are
also contractual employees engaged on out
sourcing basis through service providing
agencies. These contractual employees are not
eligible for regularization as per the aforesaid
Resolution."

It is further contended that in such cases the

mechanism which is to be adopted is, a High Power

Committee has to be constituted under the

chairmanship of the Secretary of the relevant

Department in which the concerned Head of the

Department and FA/AFA of the Department shall be

the members. Such High Power Committee by

considering the cases of regularization should ensure

that the concerned appointees fulfill the mandatory

eligibility conditions as prescribed in the resolution

dated 17.09.2013. The same having not been complied,

the petitioners cannot be regularized as claimed in this

Page 20 of 50

writ petition. To the alternative argument advanced by

learned counsel for the petitioners, it is contended that

the completion of 10 years of services is in terms of

Umadevi
(supra) but by the time such judgment was

rendered, the petitioners had not competed 10 years of

services, therefore, their service cannot be regularized.

To substantiate his contention, he has relied upon the

judgment of the apex Court in
University of Delhi vs.

Delhi University Contract Employees Union and

others
, (2021) SCC OnLine SC 256.

5. This Court heard Mr. B.S. Tripathy-1,

learned counsel for the petitioner and Mr. H.M. Dhal,

learned Addl. Government Advocate appearing for

State-opposite parties by hybrid mode. Pleadings

having been exchanged between the parties and with

the consent of the learned counsel for the parties, this

writ petition is being disposed of finally at the stage of

admission in compliance of order dated 17.06.2021

passed in W.A. No. 298 of 2021.

Page 21 of 50

6. Before delving into the contentions raised

by learned counsel for the parties, it is apposite to

mention here that the apex Court in
Roma Sonkar v.

Madhya Pradesh State Public Service Commission
,

2018 (II) OLR (SC) 483 held that the Division Bench in

appeal arising out of order passed under writ

jurisdiction exercises same jurisdiction, primarily and

mostly to consider the correctness or otherwise of the

view taken by the learned Single Judge. Therefore, the

learned Single Judge is not sub-ordinate to the Division

Bench. In such circumstance, the Division Bench is to

consider the writ appeal on merits instead of remitting

the matter back to the learned Single Judge. But, in

this case, the Division Bench, instead of deciding the

writ appeal on merit, has remitted the matter back to

the learned Single Judge with certain directions as

contained in para-7 of the order itself. Therefore,

adhering to the judicial discipline, this Court, in

compliance of the order dated 17.06.2021 passed by

Page 22 of 50

the Division Bench, heard this matter afresh in terms of

the directions contained in para-7 of the said order.

7. On careful consideration of the rival

contentions and on perusal of materials available on

record, this Court finds that the petitioners, having

requisite eligibility criteria and on being duly selected

through a transparent written test conducted by the

selection committee headed by ADM, had been

appointed against the sanctioned vacant posts and

continued to work for more than 6 years, without

benefit or protection of the interim order of any court,

or tribunal. Therefore, they are deemed to be

regularized in PB-1 Rs.5200-20000/- + GP Rs.1900/-

with usual allowances admissible from time to time, as

per GA Department resolution dated 17.09.2013 by

issuing a formal order of regularization in their favour,

particularly when such benefits have already been

extended to similarly circumstanced employees of other

departments vide Annexure-11 series. Non-extension of

Page 23 of 50

such benefits to the petitioners amounts to arbitrary

and unreasonable exercise of power by the authority,

which violates Article -14 of the Constitution of India. It

is not in dispute that the petitioners were engaged in

the year 2008 and are continuing in service till date by

getting extension from spell to spell, and as such, a

right has already been accrued in their favour on

completion of six years of satisfactory service in terms

of the resolution dated 17.09.2013.

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
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

Page 24 of 50

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

Page 25 of 50

examine the feasibility of his regularization. While doing

so, the authorities ought to adopt a positive approach

coupled with empathy for the person.

9.
In
Umadevi
(3) (supra) the apex Court in

paragraph-53 of the judgment held as follows:

"One aspect needs to be clarified. There may
be cases where irregular appointments (not
illegal appointments) as explained in State of
Mysore v. S.V. Narayanappa, AIR 1967 SC
1071; R.N. Nanjundappa v. T. Thimmaiah,
(1972) 1 SCC 409 and B.N. Nagarajan v.

State of Karnataka (1979) 4 SCC 507 and
referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might
have been made and the employees have
continued to work for ten years or more but
without the intervention of orders of the courts
or of tribunals. The question of regularisation
of the services of such employees may have to
be considered on merits in the light of the
principles settled by this Court in the cases
above referred to and in the light of this
judgment. In that context, the Union of India,
the State Governments and their
instrumentalities should take steps to
regularise as a one-time measure, the services
of such irregularly appointed, who have
worked for ten years or more in duly
sanctioned posts but not under cover of orders
of the courts or of tribunals and should further
ensure that regular recruitments are
undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases
where temporary employees or daily wagers
are being now employed. The process must be
set in motion within six months from this date.
We also clarify that regularisation, if any

Page 26 of 50

already made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further bypassing of the
constitutional requirement and regularising or
making permanent, those not duly appointed
as per the constitutional scheme."

10. Further, in
M.L. Kesari
(supra), following

the ratio decided in
Umadevi
(3) (supra), the apex Court

in paragraphs 9, 10 & 11 of the judgment held as

follows:

"9. The term "one-time measure" has to be
understood in its proper perspective. This
would normally mean that after the decision
in Umadevi (3), each department or each
instrumentality should undertake a one-time
exercise and prepare a list of all casual, daily-
wage or ad hoc employees who have been
working for more than ten years without the
intervention of courts and tribunals and
subject them to a process verification as to
whether they are working against vacant
posts and possess the requisite qualification
for the post and if so, regularise their services.

10. At the end of six months from the date of
decision in Umadevi (3), cases of several
daily-wage/ad hoc/casual employees were
still pending before courts. Consequently,
several departments and instrumentalities did
not commence the one-time regularisation
process. On the other hand, some government
departments or instrumentalities undertook
the one-time exercise excluding several
employees from consideration either on the
ground that their cases were pending in
courts or due to sheer oversight. In such
circumstances, the employees who were
entitled to be considered in terms of para 53

Page 27 of 50

of the decision in Umadevi (3), will not lose
their right to be considered for regularisation,
merely because the one-time exercise was
completed without considering their cases, or
because the six-month period mentioned in
para 53 of Umadevi (3) has expired. The one-
time exercise should consider all daily-
wage/ad hoc/casual employees who had put
in 10 years of continuous service as on 10-4-
2006 without availing the protection of any
interim orders of courts or tribunals. If any
employer had held the one-time exercise in
terms of para 53 of Umadevi (3), but did not
consider the cases of some employees who
were entitled to the benefit of para 53 of
Umadevi (3), the employer concerned should
consider their cases also, as a continuation of
the one-time exercise. The one-time exercise
will be concluded only when all the employees
who are entitled to be considered in terms of
para 53 of Umadevi (3), are so considered.

11. The object behind the said direction in
para 53 of Umadevi (3) is twofold. First is to
ensure that those who have put in more than
ten years of continuous service without the
protection of any interim orders of courts or
tribunals, before the date of decision
in Umadevi (3) [(2006) 4 SCC 1] was rendered,
are considered for regularisation in view of
their long service. Second is to ensure that the
departments/instrumentalities do not
perpetuate the practice of employing persons
on daily-wage/ad hoc/casual basis for long
periods and then periodically regularise them
on the ground that they have served for more
than ten years, thereby defeating the
constitutional or statutory provisions relating
to recruitment and appointment. The true
effect of the direction is that all persons who
have worked for more than ten years as on
10-4-2006 [the date of decision in Umadevi
(3) without the protection of any interim order
of any court or tribunal, in vacant posts,
possessing the requisite qualification, are

Page 28 of 50

entitled to be considered for regularisation.

The fact that the employer has not undertaken
such exercise of regularisation within six
months of the decision in Umadevi (3) or that
such exercise was undertaken only in regard
to a limited few, will not disentitle such
employees, the right to be considered for
regularisation in terms of the above directions
in Umadevi (3) as a one-time measure."

11. The purpose and intent of the decision

in
Umadevi
(3) (supra) was therefore twofold, namely, to

prevent irregular or illegal appointments in the future

and secondly, to confer a benefit on those who had been

irregularly appointed in the past.

The fact that the State

of Jharkhand continued with the irregular

appointments for almost a decade after the decision

in
Umadevi
(3) (supra) is a clear indication that it

believes that it was all right to continue with irregular

appointments, and whenever required, terminate the

services of the irregularly appointed employees on the

ground that they were irregularly appointed. This is

nothing but a form of exploitation of the employees by

not giving them the benefits of regularization and by

placing the sword of Damocles over their head.

This is

Page 29 of 50

precisely what
Umadevi (3) and M.L.Kesari
(supra),

sought to avoid.

12. The laudable objective behind the

aforementioned judgments of the apex Court in

Umadevi and M.L. Keshari is to prevent the employers

to exploit employees by engaging them in different

categories of names, i.e., daily/casual/NMR and now

contractual one. Therefore, as an one time measure, the

apex Court observed that for the employees, who have

completed ten years of service as on the judgment of

Umadevi, the employers should take steps for

regularization of their services so that the irregularly

and illegally engaged employees, having rendered so

many years, will not be exploited any further. But the

avowed objective of the judgments of the apex Court in

Umadevi and M.L. Keshari has not been adhered to by

the employer in letter and spirit. In contravention to

such objective, the employers have gone on engaging

the employees in different names, more particularly,

Page 30 of 50

now-a-days, as contractual engagement. Thereby, the

employers are overreaching the principle
laid down by

the apex Court in aforementioned judgments. For that,

the employees should not be denied the benefit of

regularization, as they have been exploited by the

employers.

13.
In
Malathi Das (Retired) Now P.B.

Mahishy v. Suresh
; (2014) 13 SCC 249, relying upon

the ratio decided in
Umadevi
(3) (supra), the apex Court

held that refusing regularization of service cannot be

countenanced to such decision and, therefore, clarified

that the appellants therein so also all other competent

authorities of the State would be obliged and duty

bound to regularize the services of employees which will

be done forthwith.

14.
In
Amarendra Kumar Mohapatra and

others v. State of Orissa
, AIR 2014 SC 1716, the apex

Court clarified the ratio decided in
Umadevi
(3) (supra)

at paragraphs 34 and 35 as follows:

Page 31 of 50

"34. A Constitution Bench of this Court in

Secretary, State of Karnataka and Ors. v.
Umadevi
(3) and Ors. (2006) 4 SCC 1 : (AIR
2006 SC 1806 : 2006 AIR SCW 1991) ruled
that regularisation of illegal or irregularly
appointed persons could never be an
alternative mode of recruitment to public
service. Such recruitments were, in the opinion
of this Court, in complete negation of the
guarantees contained in
Articles 14
and
of
the Constitution. Having said so, this Court
did not upset the regularisations that had
already taken place, regardless of whether
such regularisations related to illegal or
irregular appointments. The ratio of the
decision in that sense was prospective in its
application, leaving untouched that which had
already happened before the pronouncement
of that decision. This is evident from the
following passage appearing in the decision:

"We also clarify that regularization, if
any already made, but not subjudice, need
not be reopened based on this judgment, but
there should be no further by-passing of the
constitutional requirement and regularizing or
making permanent, those not duly appointed
as per the constitutional scheme."

35. The above is a significant feature of the
pronouncement of this Court in Umadevi's
case (supra). The second and equally
significant feature is the exception which this
Court made in para 53 of the decision
permitting a one-time exception for
regularising services of such employees as
had been irregularly appointed and had
served for ten years or more. The State
Government and its instrumentalities were
required to formulate schemes within a period
of six months from the date of the decision for
regularisation of such employees. This is
evident from a reading of para 53 (of SCC) :

Page 32 of 50

(Para 44 of AIR, AIR SCW) of the decision
which is reproduced in extenso:

"One aspect needs to be clarified. There may
be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa (AIR 1967 SC 1071) (supra),
R.N. Nanjundappa (AIR 1972 SC 1767)
(supra), and
B.N. Nagarajan (AIR 1979 SC

1676) (supra), and referred to in paragraph 15
above, of duly qualified persons in duly
sanctioned vacant posts might have been
made and the employees have continued to
work for ten years or more but without the
intervention of orders of courts or of tribunals.

The question of regularization of the services
of such employees may have to be considered
on merits in the light of the principles settled
by this Court in the cases above referred to
and in the light of this judgment. In that
context, the Union of India, the State
Governments and their instrumentalities
should take steps to regularize as a one time
measure, the services of such irregularly
appointed, who have worked for ten years or
more in duly sanctioned posts but not under
cover of orders of courts or of tribunals and
should further ensure that regular
recruitments are undertaken to fill those
vacant sanctioned posts that require to be
filled up, in cases where temporary employees
or daily wagers are being now employed. The
process must be set in motion within six
months from this date..."

15. So far as "irregular appointment" is

concerned, the same has also been clarified in

Amarendra Kumar Mohapatra
(supra) at paragraph-

43 as follows:

Page 33 of 50

"43. As to what would constitute an irregular
appointment is no longer res integra. The
decision of this Court in
State of Karnataka
v. M.L. Kesari and Ors.
(2010) 9 SCC 247 :

(AIR 2010 SC 2587 : 2010 AIR SCW 4577),
has examined that question and explained the
principle regarding regularisation as
enunciated in
Umadevi
's case (supra). The
decision
in that case
summed up the following
three essentials for regularisation (1) the
employees worked for ten years or more, (2)
that they have so worked in a duly sanctioned
post without the benefit or protection of the
interim order of any court or tribunal and (3)
they should have possessed the minimum
qualification stipulated for the appointment.
Subject to these three requirements being
satisfied, even if the appointment process did
not involve open competitive selection, the
appointment would be treated irregular and
not illegal and thereby qualify for
regularisation. Para 7 in this regard is
apposite and may be extracted at this stage:

"7. It is evident from the above that
there is an exception to the general
principles against "regularisation"

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

Page 34 of 50

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."

16. The apex Court in Amarkant Rai,

mentioned supra, referring to
Nihal Singh v. State of

Punjab
, (2013) 14 SCC 65, in paragraphs 12 & 13 held

as follows:

"12. Applying the ratio of Umadevi (3) case [(2006)
4 SCC 1 : 2006 SCC (L&S) 753] , this Court in
Nihal
Singh v. State of Punjab
[(2013) 14 SCC 65 : (2013)
3 SCC (L&S) 85] directed the absorption of the
Special Police Officers in the services of the State of
Punjab holding as under: (
Nihal Singh
case [(2013)
14 SCC 65 : (2013) 3 SCC (L&S) 85] , SCC pp. 79-
80, paras 35-36)

"35. Therefore, it is clear that the existence
of the need for creation of the posts is a
relevant factor with reference to which the
executive government is required to take
rational decision based on relevant
consideration. In our opinion, when the facts
such as the ones obtaining in the instant case
demonstrate that there is need for the
creation of posts, the failure of the executive
government to apply its mind and take a
decision to create posts or stop extracting
work from persons such as the appellants
herein for decades together itself would be

Page 35 of 50

arbitrary action (inaction) on the part of the
State.

36. The other factor which the State is
required to keep in mind while creating or
abolishing posts is the financial implications
involved in such a decision. The creation of
posts necessarily means additional financial
burden on the exchequer of the State.
Depending upon the priorities of the State, the
allocation of the finances is no doubt
exclusively within the domain of the
legislature. However in the instant case
creation of new posts would not create any
additional financial burden to the State as
the various banks at whose disposal the
services of each of the appellants is made
available have agreed to bear the burden. If
absorbing the appellants into the services of
the State and providing benefits on a par
with the police officers of similar rank
employed by the State results in further
financial commitment it is always open for
the State to demand the banks to meet such
additional burden. Apparently no such
demand has ever been made by the State.
The result is--the various banks which avail
the services of these appellants enjoy the
supply of cheap labour over a period of
decades. It is also pertinent to notice that
these banks are public sector banks."

13. In our view, the exception carved out in para 53
of Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S)
753] is applicable to the facts of the present case.
There is no material placed on record by the
respondents that the appellant has been lacking
any qualification or bore any blemish record during
his employment for over two decades.

17. In Sheo Narain Nagar, mentioned

supra, the apex Court in paragraph-8 of the judgment

held as follows:

Page 36 of 50

"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
, 16
read
with
Article 34 (1)(d)
of the Constitution of India as
if they have no constitutional protection as
envisaged in
D.S. Nakara v. 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

Page 37 of 50

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
Uma Devi

(supra).

18. In Rajnish Kumar Mishra, mentioned

supra, the three-Judge Bench of the apex Court in

paragraphs-12 and 16 of the judgment held as follows:

"12. The learned counsel further submits, that this
Court in the case of
Sheo Narain Nagar & Ors. vs.
State of Uttar Pradesh & Ors.1
, after considering
the judgment of this Court in Secretary, State of
Karnataka & Ors. vs. 1 (2018) 13 SCC 432 {Civil
Appeal No.18510 of 2017 [@ SLP(C)
No.6183/2015]} Umadevi (3) & Ors.2 wherein it
was observed that as a onetime measure the
employer should take steps for regularisation of the
services of the employees who had put in service of
10 years or more and had directed regularization of
the appellants therein. The learned counsel further
submits, that the appeals deserve to be allowed
and the impugned order deserves to be quashed
and set aside.

16. It is further to be noted that similarly
circumstanced employees in the employment of the
State of Uttar Pradesh, who were appointed on
daily wages/contractual basis had approached the
Allahabad High Court praying for regularization of
their services. The Single Judge had dismissed the

Page 38 of 50

writ petitions which orders were affirmed by the
Division Bench. The said employees therein had
approached this Court by way of Civil Appeal
No.18510 of 2017 (arising out of Special Leave
Petition (Civil) No.6183 of 2015) in the case of Sheo
Narain Nagar cited supra. It will be relevant to refer
to the following observations of this Court in the
case of
Sheo Narain Nagar
(supra):

"The appellants were required to be
appointed on regular basis as a onetime
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."

19. The apex Court in
Vice Chancellor

Anand Agriculture University v. Kanubhai

Nanubhai Vaghela
, (in Civil Appeal No. 4443 of 2021,

arising out of SLP (C) No. 12171 of 2019) was pleased to

extend benefit to the daily wager for regularization on

confirming the judgment passed by the Gujarat High

Court.

20. In view of the order passed by the

tribunal in Jatin Kumar Das, mentioned supra, which

Page 39 of 50

was confirmed by this Court, benefit has already been

extended to the Data Entry Operators working in

different departments of the Government. Similarly,

pursuant to order passed by this Court in Surendra

Kumar Das vs. State of Odisha (W.P.(C) No. 21188 of

2013) and Umesh Chandra Ghadei vs. State of

Odisha (W.P.(C) No. 1666 of 2014) regularization has

been made in their cases.

21. In Biswamitra Parida, mentioned supra,

the order having been confirmed by the apex Court,

benefit has already been extended to the petitioners in

the said case.

22. In Biswamitra Parida, mentioned supra,

the State had taken a stand in the apex Court to the

following effect:

"However, the Hon‟ble Court committed a manifest
miscarriage of justice by passing the impugned
order dated 10.02.2021 failed to appreciate the
merit of the case and dismissed W.A. No. 822 of
2020. Hence, the Petitioners herein have preferred
to file the present Special Leave Petition on the
following grounds amongst others;

Page 40 of 50

Firstly, the Hon‟ble High Court committed gross
miscarriage of justice by ignoring that the
regularization of the Respondents would be
against the Resolution dated 17.09.2013 issued
by the Government in General Administration
Department and subsequent Resolution issued on
16.01.2014 and Letter dated 14.03.2018 of the
Govt. Circular dated 14.03.2018 of the
Government as well as the Odisha Group-C and
Group-D posts (contractual appointment) Rules,
2013.

Secondly, The Hon‟ble High Court ignored what
has been held by this Hon‟ble Apex Court in the
case of
State of Rajasthan and Ors. V. Dayalal
and Ors. Reported
in 2011 (2) SCC 429 wherein
this Hon‟ble Court observed as follows:

" We may at the outset: refer to the following
well settled principles relating to
regularization and parity in pay, relevant in
context of these appeals.

(i) High Courts in exercising the power
under
Article 226
of the Constitution
will not issue directions for
regularization, absorption or
permanent continuance, unless the
employee claiming regularization had
been appointed in pursuance of
regular recruitment in accordance
with relevant Rules in an open
competitive process, against
sanctioned vacant post. The equality
clause contained in
Article 14

& 16

should be scrupulously followed and
courts should not Issue a direction for
regularization of service of an
employee which would be violative of
constitutional scheme. While
something that is irregular for want of
compliance with one of the elements
in the process of selection which does
not go to the roof of the process, can
be regularized, back door entries,

Page 41 of 50

appointment contrary to the
constitutional scheme and/or
appointment of ineligible candidates
cannot be regularized.

(ii) Mere continuation of service by an
temporary or adhoc or daily wage
employee, under cover of some interim
orders of the Court would not confer
upon him any right to be absorbed
into service as such service would be
„litigious employment‟. Ever
temporary, adhoc or daily wage
service for a long number of years, let
alone service for one or two years, will
not entitle such employee to claim
regularization, if he is not working
against a sanctioned post. Sympathy
and sentiments cannot be grounds for
passing any order of regularization in
the absence of a legal right."

Thirdly, that the Hon‟ble High Court failed to
consider the conditions reflected in the order of
appointment of the Respondents wherein it was
clearly stipulated that the appointment is on
contractual basis and no claim for regularization
will be entertained. Moreover, the Respondents
herein accepted the said condition while joining as
Jr. Data Entry Operators and hence, they ought to
have been stopped from claiming regularization by
the Courts below when the Respondents herewith
voluntarily accepted the said condition. Therefore,
the impugned order passed by the Hon‟ble High
Court is non-est in the eyes of law. The submission
finds its strength from the decision of this Hon‟ble
Court in the
State of Karnataka v. Umadevi
(3),
reported in (2006) 4 SCC 1.

Fourthly, the Hon‟ble High Court exceeded their
jurisdiction in passing the order when the decision
of regularization, absorption etc. was a decision
purely in the hands of the Petitioners, i.e., the
executive and the Courts had no right to encroach
upon the same by passing a direction directing the

Page 42 of 50

regularization of the Respondents in contravention
to the mandatory requirement of facing the
selection process as provided for in the rules
framed by the Petitioner No.1. The strength of this
submission arises from the decision of this Hon‟ble
Court in the case of Indian Drugs &
Pharmaceuticals Ltd. v. Workmen, reported I
(2007) 1 SCC 408 wherein it was held that :

" 37. Creation and abolition of posts and
regularization are purely executive functions
vide
P.U. Joshi v. Accountant General
[
(2002) 2 SCC 632 : 2003 SCC ( L & S) 191].

Hence, the Court cannot create a post where
none exists. Also, we cannot issue any
direction to absorb the respondents or
continue them in service, or pay them
salaries of regular employees, as these are
purely executive functions. This Court
cannot arrogate to itself the powers of the
executive or legislature. There is broad
separation of powers under the Constitution,
as the judiciary, too, must know its limits."

Thereby, the contentions, which are being raised now,

had been raised in Biswamitra Parida (supra) by the

State before the apex Court. By dismissing such SLP,

the stand taken has been negatived. As such, benefit

has been extended to Biswamitra Parida. Thereby, the

opposite parties cannot raise similar question before

this Court. In other words, the same cannot be taken

into consideration at this stage to deprive the legitimate

claim of the petitioners.

Page 43 of 50

23. In Rajendra Kumar Nayak, mentioned

supra, this Court directed the opposite parties to

regularize the service of the petitioner in the said case

and grant all consequential service benefits as due and

admissible to the post held by him. In compliance of the

said direction, the service of the Rajendra Kumar Nayak

has already been regularized and he has already been

extended with the benefits.

24.
In
Sunil Barik v. State of Odisha
, 2021

(II) OLR-469, since the petitioner had been discharging

the duties against a sanctioned vacancy in the post of

barber with the knowledge of the employer on daily

wage basis for a quite long time, and his engagement

was due to the emergent situation, this Court directed

for regularization of his service with all consequential

benefits.

25. So far as applicability of the case of

University of Delhi, mentioned supra, as relied on by

Mr. H.M. Dhal, learned Additional Government

Page 44 of 50

Advocate for the State opposite parties, to the present

case is concerned, factually the same is distinguishable.

The fact in the case of University of Delhi is that by

communication dated 31.08.1999 the UGC imposed a

ban on filling up of non-teaching posts in all

institutes/universities and affiliated colleges. On

12.01.2011, the UGC sanctioned and allowed the

University to fill up 255 posts of Junior Assistants.

Accordingly, by amending rules, an advertisement was

published on 06.11.2013 inviting applications for filling

up 255 posts of Junior Assistants in the University.

However, for the period from 2003 to 2013 various

appointments were made by the University on contract

basis, as a result of which about 300 Junior Assistants

are presently in the employment of the University on

contract basis, most of whom are members of the

Union.

Soon after the advertisement dated

06.11.2013, the Delhi University Contract Employees

Page 45 of 50

Union and others filed Writ Petition (C) No.7929 of

2013 before the Delhi High Court seeking regularization

of services of members of the union. Learned Single

Judge of Delhi High Court, vide order dated

16.12.2013, rejected the said writ petition relying upon

the judgment of the apex Court in
Umadevi
(3) (supra).

Against the said order, the Delhi University Contract

Employees Union preferred LPA No.989 of 2013 before

the Division Bench of the Delhi High Court.

Accordingly, the Division Bench vide judgment dated

22.11.2016 allowed the writ appeal and the University

was directed to design and hold an appropriate test for

selection in terms of the notification dated 06.11.2013.

Challenging the said order of Division

Bench, Delhi University filed Civil appeal No.1007 of

2021 and the Union also preferred an appeal and the

same is numbered as Civil Appeal No. 1008 of 2021

arising out of SLP (C) No. 4906 of 2021. The apex Court

confirmed the judgment passed by the learned Single

Page 46 of 50

Judge holding as one time measure, the regularization

has to be made in terms of the judgment in
Umadevi

(3) (supra).

But by the time
Umadevi
(3) (supra) came

into effect, the employees had put in 3 to 4 years of

service on contract basis. Though benefit of

regularization cannot be granted, a window of

opportunity must be given to them to compete with the

available talent through public advertisement. But the

petitioners in the instant case have been appointed

through a process of selection and, as such, they are

continuing for more than 6 years and their services

have to be regularized in terms of G.A. Department

Resolution dated 17.09.2013. Thereby, factually and

legally the judgment of Delhi University is

distinguishable and, as such, the same is not

applicable to the present case.

26. The decision taken by the Government on

16.03.2020 in Annexure-17 as well as Finance

Department memorandum dated 07.07.2020 in

Page 47 of 50

Annexure-19 has no application to the present context,

as the petitioners are governed by the Government

resolution dated 17.09.2013 and they have completed

six years of service and continuing against the

sanctioned post by following due process of selection,

for which they are entitled to formal order of

regularization, as they are deemed to be regularized in

service.

27. Considering from all angels, since the

petitioners have already rendered more than 6 years of

service, they are deemed to be regularized. Thereby,

only formal order of regularization has to be issued in

consonance with the resolution dated 17.09.2013

passed by the authority. Otherwise also they have

completed ten years of service, having been appointed

by the authorities against sanctioned posts by following

due process of selection, and continued by them

voluntarily, their services are to be regularized in terms

of judgments of the apex Court, as discussed above.

Page 48 of 50

Furthermore, when services of similarly situated

persons have been regularized in other departments,

the petitioners cannot be deprived of such benefit on

the caprice and whims of the authority concerned and

such action of the State and its instrumentalities

cannot sustain in the eye of law.

28. In view of the factual and legal aspects, as

discussed above, this Court is of the considered view

that the services of the petitioners should be regularized

by issuing formal letters of regularization in terms of the

G.A. Department letter dated 17.09.2013, as they have

already completed 6 years of service, on being appointed

against sanctioned posts by following due procedure of

selection. Otherwise also they having 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 regularized. Accordingly, this Court directs

the opposite parties to regularize the services of the

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petitioners and grant them all consequential service and

financial benefits in accordance with law as

expeditiously as possible, preferably within a period of

two months from the date of communication of this

judgment.

29. In the result, the writ petition is allowed.

But, however, there shall be no order as to costs.

..............................

DR. B.R. SARANGI,
JUDGE

Orissa High Court, Cuttack
The 9th September, 2021, Ajaya/GDS

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