Allowed

Bijay Kishore Nath v. State of Odisha

Orissa HC16 Aug 2024WP(C)/24545/2021

Case brief

AI extract

What is this about?

This judgment addresses a writ petition by contractual drivers challenging an order rejecting their regularization claims. The court held that despite procedural irregularities, their appointments were not illegal as they worked against sanctioned posts without court interference. The impugned order was quashed, directing regularization to maintain parity with similarly situated employees.

What did the court decide?

The impugned order dated 07.08.2021 was quashed. The respondents were directed to consider the claim of each petitioner for regularization of service and subsequent benefits within three months.

Bijay Kishore Nath Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C) No.24545 of 2021

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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1. Bijay Kishore Nath Aged 51 years Son of Lachhman Nath Driver, Office of DCCT (Enf.) Range Balasore.

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2. Prakash Khatua Aged about 44 years Son of Jugal Kishore Khatua Driver, Office of ACCT, Boudh Circle Boudh. 3. Dillip Kumar Biswal Aged 53 years Son of Late Narasingha Biswal Driver, Office of Addl. CCT, Cuttack-I Range Cuttack. 4. Chitta Ranjan Sahoo Aged 44 years Son of Debendranath Sahoo Driver, Office of DCCT, Bhubaneswar Circle-III, Khorda. 5. Kailash Chandra Swain Aged 41 years Son of Late Padmanav Swain Driver, Office of Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack.

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6. Jayanta Kumar Bastia Aged 45 years Son of Ghanasyama Bastia Driver, Office of DCCT, Paradip Range Jagatsinghpur.

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7. Haladhar Mohapatra Aged 45 years Son of Late Nityananda Mohapatra Driver, Office of DCCT, Dhenkanal Circle Dhenkanal.

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8. Krupasindhu Mohapatra Aged 41 years Son of Late Arjun Mohapatra Driver, Office of DCCT, Jatni Circle Jatni, District: Khordha.

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9. Uma Sankar Mohapatra Aged 40 years Son of Laxmi Ch. Mohapatra Driver Office of Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack.

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10. Sarat Kumar Gouda Aged 50 years Son of Hari Gouda, Driver Office of ACCT, Ganjam Range Berhampur, Ganjam.

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11. Biswajit Parida Aged 44 years Son of Laxman Parida, Driver Office of Commissioner of Commercial Tax & Goods and Service Tax Odisha, Cuttack. … Petitioners.

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-VERSUS-

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1. State of Odisha Represented through Principal Secretary Finance Department Odisha Secretariat Bhubaneswar, Khordha.

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2. Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Banijyakar Bhawan Cuttack … Opposite parties.

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Counsel appeared for the parties:

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For the Petitioners : M/s. Bhabani Sankar Tripathy-1, Atul Tripathy and Amit Sahoo, Advocates

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For the Opposite parties : M/s. Sailaza Nandan Das and Tarun Patnaik, Additional Standing Counsel

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 25.07.2024 :: Date of Judgment : 16.08.2024

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JUDGMENT

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MURAHARI SRI RAMAN, J.—

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The petitioners, drivers of the Head Office and the different Ranges and Circles under the Commissionerate of Commercial Tax & Goods and Service Tax, laid challenge against Order No.1245-SMNG-HC51/2020/CT&GST, dated 07.08.2021 of the

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Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack, in refusing to regularise their contractual service against sanctioned post by way of filing the instant writ petition under Article 226/227 of the Constitution of India with the following prayer(s):

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“On the facts and in the circumstances stated above, your petitioners, therefore, pray that this Hon’ble Court be pleased to;

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i) quash the impugned Order No.1245 dated 07.08.2021 of the opposite party No.2 in Annexure17 by holding the same as illegal and bad in law and thereby;

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ii) direct the opposite party No.2 to forthwith issue formal orders in favour of the petitioners regularizing their services as Drivers in its various establishments with effect from the date of their completing six years of contractual services in the scale of pay PB-1-Rs.5,200-20,200/- + GP Rs.1900/with usual allowances admissible from time to time as per General Administration Department Resolution dated 17.09.2013 and in the same manner as has been allowed to similarly situated contractual Drivers and employees in Annexure-13 Series and as per the law laid down by the Apex Court in the case of State of Karnataka Vrs. Umadevi (3), reported in (2006) 4 SCC 1, State of Karnataka Vrs. M.L. Kesari, reported in (2010) 9 SCC 247 and all subsequent similar judgments;

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iii) pass such other order(s) as deemed fit and proper in the bona fide interest of justice and fair play and;

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iv) for which act of your kindness, petitioners shall as in duty bound, ever pray.”

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Facts:

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2. Facts as unfurled by the writ petitioners, the following contours of service records are revealed:

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Petitioner No.1:

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i. He had applied for the post of Driver created in Finance Department Letter No.4329, dated 0l.02.2008 in lieu of one vacant post of Junior Clerk in Sundergarh Range in the Office of Assistant Commissioner of Commercial Tax (Enforcement Range), Balasore on contractual basis at a consolidated salary of Rs.3,000/- per month through his application dated 11.12.2009.

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ii. He appeared before the Selection Committee held on 22.12.2009 in the Office of the Deputy Commissioner of Commercial Tax, Enforcement Range, Balasore and stood first in the merit list. Thereafter, on the recommendation of the Selection Committee, the petitioner was given appointment as Driver on contractual basis for a period of one year on a consolidated remuneration of Rs.3,000/per only as per Finance Department Memo No.32986, dated 07.07.2008 in the Office of the Deputy Commissioner of Commercial Tax, Enforcement Range, Balasore vide Office Order

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No.491 dated 30.12.2009. Having joined the post on 31.12.2009, he has been continuing as such till date.

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Petitioner No.2:

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i. He was selected in the selection process initiated for filling up of one post of Driver in Office of Commercial Tax Officer, Boudh Circle out of 12 posts of Drivers created by Finance Department vide Letter No.4331, dated 0l.02.2008 for its different Circle Offices, and was appointed vide Order No.1122 dated 22.05.2013 of the Joint Commissioner of Commercial Tax, Sambalpur Range with consolidated remuneration of Rs.5,200/- per month upto the period ending 28.02.2014. Having joined the Office of Assistant Commissioner of Commercial Tax, Boudh Circle on 24.05.2013, he has been continuing as such till date on annual extension basis.

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Petitioner No.3

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i. He was initially engaged as Driver on Daily Wage basis in the Office of Assistant Commissioner of Commercial Tax, Bhanjanagar Unit since August, 2008.

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ii. Thereafter he was engaged on contractual basis against the post sanctioned by Finance Department

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with a consolidated monthly remuneration of Rs.3,050/- and he was posted vide Office Order No.634, dated 19.02.2010 of Joint Commissioner Commercial Tax, Ganjam Range, Berhampur until 28.02.2010. Thereafter, the Joint Commissioner of Commercial Tax, Ganjam Range, Berhampur issued Office Order No.639, dated 19.02.2010 posting him in the Office of Assistant Commissioner of Commercial Tax, Phulbani Circle and accordingly, he had joined on 22.02.2010 and continued there upto 02.06.2015 and thereafter he was deputed to Office of Deputy Commissioner of Commercial Tax (Vigilance), Berhampur Division. Subsequently, he was deputed to work in the Office of opposite party No.2 at Cuttack, where he is continued till date at Cuttack-I Range, Cuttack on his redeployment vide Office Order dated 30.11.2016. He has been continuing as such till date on annual extension basis.

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Petitioner No.4:

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consolidated salary of Rs.3,000/- per month. Finally, the Assistant Commissioner of Commercial Tax, Puri Range in Office Order No.561 dated 27.03.2008 communicated the order of appointment of the petitioner No.4 appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Bhubaneswar Circle-Ill. He had joined the post on 01.04.2008. His contractual engagement has further been extended from time to time annually.

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Petitioner No.5:

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i. He was selected by Selection Committee constituted by the Assistant Commissioner of Commercial Tax, Puri Range, Bhubaneswar for one post of Driver for Commercial Tax Officer, Bhubaneswar-III Circle out of 12 contractual Driver posts created by Government of Odisha in Finance Department vide Letter No.4331 dt.01.02.2008 with a consolidated salary of Rs.3,000/- per month. Finally the Assistant Commissioner of Commercial Tax, Puri Range in Office Order No.557 dated 27.03.2008 communicated the order of appointment appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms

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and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Bhubaneswar Circle-IV. He had joined his post on 01.04.2008. His contractual engagement has further been extended from time to time on annual extension basis.

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Petitioner No.6

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i. In accordance with Finance Department Notification dated 31.03.2008 and Office Order dated 31.03.2008 of opposite party No.2, he was appointed as Driver on contractual basis with a consolidated monthly remuneration of Rs.3,050/per month and was posted to the Office of Joint Commissioner of Commercial Tax, Angul Range vide Office Order No. 1861 dated 07.12.2009 of the Joint Commissioner of Commercial Tax, Angul, where he joined on 07.12.2009 and thereafter he was transferred to the Office of Deputy Commissioner of Commercial Tax, Keonjhar Circle vide Office Order dated 29.08.2016 and he joined on 01.09.2016. His contractual engagement has further been extended from time to time annually.

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Petitioner No.7

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i. He was selected against one post of contractual driver for Dhenkanal Circle Office out 12 posts of contractual Drivers created vide Finance

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Department Letter No.4331 dt.Ol.02.2008 for different Commercial Tax Circle Offices at a consolidated salary of Rs.3,000/- per month. Thereafter, in accordance with Finance Department Notification No.14744/F dated 31.03.2008 and Office Order No.754 dated 31.03.2008 of the Commissioner of Commercial Tax, Odisha he was given appointment as Driver on consolidated salary of Rs.3050 per month on contractual basis upto end of February, 2010 and he was posted in the Office of Assistant Commissioner of Commercial Tax, Dhenkanal Circle vide order communicate through Memo.No.469 dated 25.02.2009 of Joint Commissioner of Commercial Tax, Angul Range. He had joined the post on 01.03.2009. His contractual engagement has further been extended from time to time annually.

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Petitioner No.8

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i. He was selected through selection made by Assistant Commissioner of Commercial Tax, Puri Range against one post of contractual driver for Puri Range out 12 posts of contractual Drivers created vide Finance Department Letter No.4331, dated 01.02.2008 for different Commercial Tax Circle Offices at a consolidated salary of Rs.3,000/per month. Finally, the Assistant Commissioner of Commercial Tax, Puri Range in his Office Order

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dated 27.03.2008 communicated the order of appointment appointing him as Driver on consolidated salary on contractual basis upto end of February, 2009 as per the terms and conditions of Finance Department Circular dated 31.12.2004 and posted him in the Office of Commercial Tax Officer, Nayagarh. He had joined the post on 01.04.2008. His contractual engagement has further been extended from time to time annually.

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Petitioner No.9

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i. He was employed as Driver on DLR Basis in the Office of Deputy Commissioner of Commercial Tax, Enforcement Range with effect from 25.01.2007. While continuing as such , the petitioner participated for being appointed as contractual Driver and upon facing the selection and Driving Test and in pursuance to the Finance Department Order dated 02.06.2008, he was provisionally appointed as Driver on contractual basis with a consolidated remuneration of Rs.3,050/per month until 28.02.2010 vide Office Order No.11590 dated 23.06.2009 of the opposite party No.2. Subsequently, he was posted as contractual Driver in the Office of opposite party No.2 vide Order No. 11609 dated 23.06.2009. On and from the date of his joining on 23.06.2009, he has been continuing as such till date on yearly extension basis.

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Petitioner No.10:

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i. The Joint Commissioner of Commercial Taxes, Ganjam Range, Berhampur published Notice on 10.01.2013 in the Office Notice Board inviting applications from outsiders for filling up of one post of Driver on contractual engagement basis at Assessment Unit, Rambha, which post was out of 12 posts of Drivers created vide Finance Department letter No.4331 dt.Ol.02.2008. As per the aforesaid Notice, he faced the interview held on 11.01.2013 by the Selection Committee and on being provisionally selected, he was engaged as driver vide Office Order No. 105 dated 11.01.2013 of the Joint Commissioner of Commercial Tax, Ganjam Range, Berhampur for the post of Driver with consolidated remuneration of Rs.5,200/- per month from the date of his joining till 28.02.2013. Based on the engagement Order dated 11.01.2013, he joined on 14.01.2013 by submitting his joining report before the Commercial Tax Office, Assessment Unit, Rambha.

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Petitioner No.11:

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i. He joined the post of Driver on daily wage basis on 13.03.2008 and was posted to the Office of Commercial Tax Officer, Cuttack-I East Circle, Cuttack based on his selection made by the

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opposite party No.2. At that stage a single post of Driver in Cuttack-I, East Circle was created vide Finance Department Order No.28143 dated 02.06.2008 and permission was given to the opposite party No.2 vide Department Letter dated 29.08.2009 and Letter No.40545 dated 20.08.2009 to conduct selection to the said post, based on which the opposite party No.2 in Memo No.68/CT dated 03.01.2009 directed selection to the said post of Driver. In the said selection finally the petitioner was selected and was given appointment on contractual basis on a consolidated salary of Rs.5,200/- per month vide Memo No.4455 , dated 24.09.2010 of Deputy Commissioner of Commercial Tax, Cuttack-I East Circle. Based on the said Office Order, the petitioner joined on 01.10.2010 and has been continuing as such on annual extension basis till date.

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2.1. All these petitioners claimed to have been continuing to serve as drivers on contractual basis with unblemished outstanding service career till date.

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Submissions of counsel for the respective parties:

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3. In the aforesaid background of engagement of drivers in the Commercial Tax & Goods and Service Tax Organisation, Sri Bhabani Sankar Tripathy, learned Advocate proceeded to place the material before this

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Court that during continuance of the petitioners in their respective offices, 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 General Administration Department Resolution No.26108/Gen., dated 17.09.2013. According to the said Resolution, on the date of satisfactory completion of six years of contractual service or from the date of publication of the 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.

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3.1. Subsequently Government of Odisha in General Administration Department issued another Resolution on 16.01.2014 expressly clarifying earlier Resolution dated 17.09.2013 that proposal for regularization of contractual appointments/engagements as per the Resolution dated 17.09.2013 shall be considered and approved by the High Power Committee to be constituted under the Chairmanship of the concerned Department.

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3.2. Sri Bhabani Sankar Tripathy, learned Advocate further submitted that apprehending disengagement of their contractual services because of the restrictions imposed by the Finance Department Memorandum dated 07.07.2020 due to Covid-19 pandemic and keeping in view the orders passed by this Court for regularization of

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similarly situated other contractual employees, the petitioners approached this Court in W.P.(C) No.22689 of 2020, which was disposed of on 10.09.2020, whereby this Court in Single Bench passed the following Order:

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“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 12 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 Vrs. 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 [reported at (2010) 9 SCC 247].

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Learned counsel for the petitioners submits that the petitioners were engaged on DLR basis. They have already rendered more than 12 years of service under the opposite party 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 Vrs. 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.

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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 12 years on DLR basis. Therefore, the case of the petitioners is squarely covered by the ratio decided in the cases cited supra.

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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

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view the judgment in the case of Secretary State of Karnataka and others Vrs. 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.

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It is further directed that in the event the petitioners are still continuing in their services, 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.”

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3.3. Since the aforesaid Order dated 10.09.2020 was not complied with, the petitioners filed petition for initiation of contempt giving rise to CONTC No.262 of 2021, which came to be disposed of on 20.01.2021 requiring the opposite parties to work out the Order dated 10.09.2020 within a period of one month.

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3.4. While the matter stood thus, the opposite parties have filed appeal being W.A. No.79 of 2021 before the Division Bench, which came to be disposed of vide Judgment dated 21.06.2021, with the following observations:

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“***

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5. However, we are of the opinion that since these cases were disposed of on the first date of listing, a detailed order on merit of the contentions raised by the parties in the appellate stage for the first time

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will not be proper and expedient in the interest of justice.

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6. Generally, an order directing the authorities to consider the representation of a petitioner is not a proper disposal of a writ petition. However, Courts in India have developed this method of directing disposal of representation because of the heavy pendency of the cases and limited number of Courts.

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7. In all these writ petitions writs of mandamus have been issued by directing the appellants to regularise the services of the Petitioners without affording reasonable opportunity to the opposite partiesappellants to file counter affidavits and without giving a positive finding that they are entitled to be regularized in the given facts and law applicable.

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8. In that view of the matter, we hereby allow these writ appeals in part and set aside the following portion of the order and direction of the learned Single Judge:

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‘*** and regularize their services xxx xxx xxx and grant consequential service benefits as due admissible to them.’

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In other words, we direct the appellants to consider the representation of the respondents in all these cases keeping in view the settled principles of law as stated by Hon’ble Supreme Court in the judgments referred to above. For this purpose, the respondents in each cases are given liberty to file detailed representation along with duly attested copy of this Judgment within a period of twenty one days, which shall be considered by the authorities keeping in view the aforesaid consideration within a period of one month thereafter by a reasoned order

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after affording reasonable opportunity of hearing to the Respondents.”

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3.5. Sri Bhabani Sankar Tripathy, learned Advocate in furtherance of his argument highlighted that in view of Judgment of the Division Bench of this Court as referred to above, the petitioners having filed representation made the authority concerned aware of the factual aspects for consideration of their regularisation in service inter alia contending that:

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i. The petitioners were selected through a process of selection by facing interview by the Selection Committee and engaged against the sanctioned post of contractual Drivers created by Finance Department Letters dated 01.02.2008, 31.03.2008, 02.06.2008 and 07.07.2008 and have been allowed to continue by the opposite parties voluntarily and uninterruptedly till date. Hence, their cases are bound to be considered in the light of ratio of the Judgments in Secretary State of Karnataka Vrs. Umadevi (3) , (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247.

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ii. As has been clarified by the Departmental authorities that as there was no recruitment Rules or executive instructions for recruitment of Drivers in Commercial Tax Organization, process of selection was made through advertisement as per the instructions and the directions of the

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Commissioner, Commercial Tax, Odisha. Having participated in the process of selection, the petitioners were selected and engaged.

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iii. Similarly situated contractual Drivers (colleagues of the petitioners) namely Narayan Sethi, Sarat Kumar Sahoo and Premakanta Prusty were regularized as per General Administration Department Resolution dated 17.09.2013 with retrospective effect and are extended consequential service benefits. Furthermore, other departments similarly circumstanced employees also got regularised. Therefore, it was forcefully urged that the petitioners are also entitled to similar relief for they cannot be discriminated in a manner the action of the authorities may attract vice of Articles 14 and 16 of the Constitution of India.

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iv. Based on General Administration Department Resolution dated 17.09.2013 various other Departments have already regularized contractual Group-C and Group-D employees.

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v. So far as engagement of contractual posts are concerned the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (for brevity, “ORV Act”) has got no application, as held by this Court in W.P.(C) No.6661 of 2018 and upheld by the

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Supreme Court in S.L.P.(C) No. 18642 of 2018 in the cases pertaining to Data Entry Operators engaged on contractual basis in the Commercial Tax Organization.

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vi. The petitioners have also relied upon recent Judgment of the Hon’ble Supreme Court passed by the three Judge Bench upholding similar orders of the Hon’ble Single Judge in S.L.P.(C) No.6851 and 6868 of 2021.

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3.6. Having afforded the petitioners opportunity of personal hearing, the opposite party No.2 passed the order of rejection of the claim of the petitioners; which led them to approach this Court by way of the instant writ petition.

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4. Per contra relying on the counter affidavit of the opposite party Nos.1 and 2 admitting that all the petitioners faced interview in response to the advertisement put up on the notice board, submitted that the authorities at the time of engagement of these petitioners have not followed the provisions of the ORV Act.

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4.1. Be that be, laying stress on the General Administration Department Resolution No.26108-GAD-SC-RULES0009-2013/Gen., dated 17.09.2013 as clarified further in the General Administration Department Resolution vide No.1066-GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014, the Additional Standing Counsel

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strenuously urged that the requirements stipulated therein being not fulfilled in respect of petitioners-drivers who joined in their respective Offices of the Commercial Tax & Goods and Services Organisation during 20082013, they are not eligible to be regularized in their service inasmuch as the principles of Secretary, State of Karnataka and Others Vrs. Umadevi (3) and Others (2006) 4 SCC 1 has no application to the fact-situation of the case.

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4.2. It is asserted that in order to differentiate the nature of contractual appointments/engagements, i.e . type of cases deserves consideration for regular appointment, a checklist in diagrammatic depiction consisting of all the relevant Resolutions/Instructions/Circulars and the legal position as set forth by the Hon’ble Supreme Court of India in Umadevi (3), (2006)4 SCC 1 was circulated vide General Administration Department Letter No. 72l0(e)—GAD-SC-GCS-0169-2020/Gen, dated 03.03.2021

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4.3. Since the cases of drivers have been considered in the light of Umadevi (3), (2006) 4 SCC 1 with reference to Resolutions and the Instruction(s), no infirmity can be attributed to the Order dated 07.08.2021 of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, Cuttack, as impugned by the petitioners at Annexure-17.

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4.4. It has been impressed upon this Court by the learned Additional Standing Counsel that factual aspects as involved and the opposite parties-employer(s) having considered the individual cases on its merits, and the scope of judicial review being limited, the case of the petitioners does not deserve indulgence as the Order dated 07.08.2021 vide Annexure-17 has been passed in consonance with the directions contained in the Order dated 10.09.2020 passed in W.P.(C) No.22689 of 2020 ( Sanatan Bal and Others Vrs. State of Odisha and Others) as modified by virtue of the Judgment dated 21.06.2021 of this Court rendered in W.A. No.79 of 2021.

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4.5. The petitioners, joined during 2008 to 2013, have been entrusted to work as drivers on annual renewal basis. All the eleven petitioners were not engaged by following process of open and transparent recruitment. Such engagement were made contrary to the eligibility criteria envisaged in the General Administration Department Resolution No.26108-GAD-SC-RULES-0009-2013/Gen., dated 17.09.2013 as clarified further in the General Administration Department Resolution vide No.1066GAD-SC-RULES-0009/2013/Gen., dated 16.01.2014. That apart, there was non-adherence to the requirements of the ORV Act.

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4.6. Explaining further as regards claim of parity in treatment of the petitioners vis-à-vis similarly situated persons, who have been considered for regularization,

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with reference to Article 14 of the Constitution of India, the argument of the learned Additional Standing Counsel engaged attention of this Court to the following factual position as reflected in the counter affidavit:

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“7. ***

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(a) That 27 numbers of contractual drivers were engaged in different offices of Commercial Tax Organization against Government sanctioned posts prior to issue of G.A. Department Resolution No.26108/Gen,, dated l7.09.20l3. Out of them, the contractual services of 3 (three) drivers of Cuttack-II Range (viz. Narayan Sethi, Sarat Kumar Sahoo and Premakanta Prusty) were regularised in pursuance ot Finance Department Letter No. 875/F, dated 11.01.2017 as they had fulfilled all the mandatory eligibility conditions prescribed in G.A. Department Resolution No.26108/Gen, dated. 17.09.2013 and Resolution No.l066/Gen, dated.16.01.2014. But the contractual services of the remaining 24 contractual drivers including the present Petitioners have not been regularised since all the mandatory eligibility conditions as prescribed in G.A. Department Resolution No.26108/Gen, dated 17.09.2013 and Resolution No.l066/Gen, dated 16.01.2014 have not been fulfilled in their case.

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(b) Similarly the contractual services of 2(two) Group-D Staff of CT & GST Organization (viz. Sashikanta Pradhan & Ramakrushna Sahoo) have also been regularised after completion of six years service in pursuance of Finance Department Letter No. 30226/F, dated 24.11.2015 as they were engaged through proper recruitment procedure.

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(c) In pursuance of Order dated 17.05.2017 of the Odisha Administrative Tribunal passed in OA No. 2172(C) of 2015 (Jatin Kumar Das Vrs. State of Odisha & Others) and a batch of cases, which has been upheld by the Hon’ble High Court of Orissa vide Order dated 10.05.2018 in W.P.(C) No. 6661 of 2018 and by the Hon’ble Supreme Court of India vide Order dated 06.08.2018, the contractual services of the Data Entry Operators working in the CT & GST Organization have been regularised. But the mode of engagement and nature of duty of the present petitioners are quite different from that of the Data Entry Operators.

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***

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10. That the Hon’ble Apex Court in the case of State of Rajasthan and others Vrs. Dayalal and Others, reported in (2011) 2 SCC 429 in paragraph 12 observed as follows:

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‘We may at the outset refer to the following well settled principles relating to regularisation and parity in pay, relevant in context of these appeals. High Court in exercising the power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employee claiming regularisation had been appointed in pursuance of regular recruitment in accordance with relevant Rules in an open competitive process, against the sanctioned post. The equality clause contained in article 14 and 16 should be scrupulously followed and courts should not issue a direction for regularisation 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

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elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointment contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.’

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That in the instant case, though the petitioner has been engaged against the sanctioned post but neither proper recruitment procedure nor the reservation principles have been followed while engaging him. This violates the mandatory eligibility conditionality No. (ii) & (iii) as enumerated in GA Department Resolution No.26108/Gen, dated 17.09.2013 read with Resolution No.1066/ Gen, dated 16.01.2014. There is no discrimination or arbitrariness in passing the above order dated 07.08.2021, rather it is based on the Resolutions of Government in GA Department and referral judgments of the Hon’ble Apex Court.”

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4.7. Having laid emphasis on the aforesaid reply filed by way of counter affidavit to the averments contained in the writ petition, the learned Additional Standing Counsel fervently urged to dismiss the writ petition.

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The impugned Order of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha:

¶167

5. Having considered the representation of the petitioners and affording opportunity of hearing to them through their counsel in compliance of the direction of this Court vide Judgment dated 21.06.2021 passed in W.A. No.79 of 2021, the Commissioner of Commercial Tax & Goods and Service Tax, Odisha proceeded to reject the claim for

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regularization of the petitioners with the following reasons:

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“ 6. The details of contractual engagements of the above 18 petitioners (contractual drivers) are given in the following table:

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Sl. No.	Name and Office	Date of joining as contr- actual driver	Finance Department Letter No. and date in which contractual posts created/ permission granted to fill existing vacancy	Mode of engagement	Whe- ther reser- vation princ- iples follo- wed
1.	Sanatan Bal, Assessment Unit, Talcher	07.12.2 009	14760/F, dtd. 31.03.2008	Advertisement in Office Notice Board followed by interview	No
2.	Radheshyam Bhoi, Enforcement Range, Bhawanipatn a (initially posted in Sonepur Circle	15.04.2 011	4331/F., dtd.01.02.20 08	Basing on past experience as daily wage driver	No
3.	Prakash Khatua, Boudh Circle	24.05.2 013	4331/F., dtd. 01.02.2008	Pick and choose manner	No
4.	Dillip Kumar Biswal, Cuttack-I Range (initially posted in Phulbani Circle)	22.02.2 010	28143/F, dtd.02.06.20 08	Advertisement in Office Notice Board followed by interview	No
5.	Bijay Kishore Nath, Enforcement Range, Balasore	04.01.2 020	4329/ F, dtd. 01.02.2008	Advertisement in Office Notice Board followed by interview	No
6.	Sanjeet Kumar Bagh, Enforcement Unit, Jeypore (initially posed	01.07.2 011	33020/F, dtd. 07.07.2008	Basing on past experience as daily wage driver	No

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	in Vigilance Division, Koraput
7.	Padu Paraja, Nabarangpur Circle	02.09.2 009	4331/F, dtd.01.02.20 08	Basing on past experience as daily wage driver	No
8.	Chittaranjan Sahoo, Bhubaneswar- III Circle	01.04.2 008	4331/F, dtd.01.02.20 08	Advertisement in Office Notice Board followed by interview	No
9.	Kailash Chandra Swain, Commissioner ate of CT & GST, Odisha, Cuttack (initially posted in Bhubaneswar- IV Circle	01.04.2 008	4331/ F, dtd. 01.02.2008	Advertisement in Office Notice Board followed by interview	No
10.	Jayanta Kumar Bastia, Jagatsinghpur Circle, (initially posted in Angul Circle	07.12.2 009 (A.N.)	14763/F, dtd. 31.03.2008	Advertisement in Office Notice Board followed by interview	No
11.	Haladhar Mohapatra, Dhenkanal Circle	26.02.2 009 (A.N.)	4331/ F, dtd. 01.02.2008	Advertisement in Office Notice Board followed by interview	No
12.	Krupasindhu Mohapatra, Jatni Circle (initially posted in Nayagarh Circle)	01.04.2 008	4331/F, dtd. 01.02.2008	Advertisement in Office Notice Board followed by interview	No
13.	Umasankar Mohapatra Commissioner ate of CT & GST, Odisha, Cuttack	27.06.2 009	281431/F, dtd. 02.06.2008	Pick and choose manner (with recommendation of CCT on his application)	No
14.	Dharamjit Mishra, Enforcement Range, Sambalpur	23.05.2 013	4331/F, dtd. 01.02.2008	Basing on past experience as daily wage driver	No
15.	Sarat Kumar Gauda, Ganjam	14.01.2 013	4331/F, dtd. 01.02.2008	Advertisement in Office Notice Board followed by	No
	_Range _			interview
16.	Tapan Kumar	29.06.2	28143/F,	Pick and choose	No

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Sahoo, 009 dtd. manner (with
Commissioner 02.06.2008 recommendation of
ate of CT & CCT on his
GST, Odisha, application)
Cuttack
17. Biswajit 01.10.2 28143/F, Advertisement in No
Parida, 010 dtd. Office Notice
Commissioner 02.06.2008 Board followed by
ate of CT & interview
GST, Odisha,
Cuttack
(initially
posted in
Cuttack-I East
Circle)
18. Sunil Chandra 06.05.2 3193/F, dtd. Advertisement in No
Das, 010 15.01.2009 Office Notice
Enforcement Board followed by
Unit, Jajpur interview
Road

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7. As per GA Department Resolution No.26108/Gen, dated 17.09.2013 read with Resolution No.1066/Gen., dated 16.01.2014, the following are the mandatory eligibility conditionalities for regularisation of contractual appointments/ engagements on completion of six years of satisfactory contractual service.

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(i) Contractual appointments/engagements must have been made against contractual posts created with concurrence of Finance Department;

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(ii) Such contractual appointments/engagements must have been made following proper recruitment procedure;

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(iii) Principle of reservation of posts must have been followed.

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In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolutions unless the above mandatory eligibility conditionalities are fulfilled.

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The above petitioners have completed contractual services ranging from 8 to 13 years by now and presently continuing as such on annual extension/renewal basis subject to their satisfactory performance. But in case of the said petitioners, the condition stated at (i) above has been fulfilled but the conditions stated at (ii) & (iii) above have not been completely fulfilled for the reasons mentioned below:

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(a) Some of them have been engaged through advertisement in Office Notice Board followed by an interview, some others have been engaged basing on their past services as daily wage workers and the rest on pick and choose manner as depicted in the preceding table. So, as evident, proper and transparent recruitment process has not been adopted in their engagements.

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(b) Reservation principles have not been followed in all the cases.

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So their contractual services cannot be regularised as per GA Department Resolutions dated 17.09.2013 and dated 16.01.2014.

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8. The Judgment in the Umadevi case cited supra was delivered by the Hon’ble Supreme Court on 10.04.2006. As per the said Judgment, if appointments have been made against sanctioned posts and the persons so appointed possess the educational qualification (prescribed for the post) at the time of such appointment but the appointments have not been made as per proper recruitment procedure, such appointments are irregular. As an one-time relaxation measure, the Hon’ble Supreme

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Court have directed for regularisation of such irregular appointees who had been continuing in such appointment for at least 10 years as on the date of Judgment (i.e. 10.04.2006) without protection of any court order. Thus the ratio of Judgment in Umadevi case shall not apply to the contractual appointments/engagements made after 11.04.1996 and the cases of contractual appointments/engagements which are not continuous for 10 years as on 10.04.2006.

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Since the 18 petitioners of the present Writ Petition were engaged during the period 2008-2013, their cases are not squarely covered by the ratio decided in Umadevi case and as such they cannot be regularised as per the judgment of Umadevi case.

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9. The Judgment dated 03.08.2010 of the Hon’ble Supreme Court in the M.L. Kesari case cited supra is extension/continuation of Umadevi Judgment dated 10.04.2006. In their Judgment dated 03.08.2010 in M.L. Kesari case, the Hon’ble Supreme Court have directed that the persons eligible for regularisation as per the Umadevi Judgment but left out due to oversight or otherwise be regularised as an extension of the one time measure decided therein. But the M.L. Kesari Judgment speaks nothing about new irregular appointment/engagements made after 10.04.2006. As such, the Judgment of M.L, Kesari case is not applicable in case of the present petitioners who have joined as Contractual Drivers on different dates during the period 2008-2013.

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***

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11. Government in GA&PG Department vide their latest Circular No. 7210(e)/Gen., dated 03.03.2021 in the

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matter of regularisation of contractual employees has prescribed a checklist for examination of each case. As per the said checklist, the only option left for consideration of regularisation of present petitioners is to examine their cases as per 2013/2014 Resolutions of GA Department, which requires 3 mandatory eligibility conditions contained in the said Resolutions (mentioned in paragraph-7 above). Since proper recruitment procedure and Principles of reservation as per ORV Rules have not been followed during the engagement of the petitioners, they cannot be considered for regularisation in the post of Driver as per Government in GA Department Resolutions of 2013/2014. There is no fundamental rights in those who have been employed in daily wages or temporarily or on contractual basis through pick and choose method to claim that they have a right to be absorbed in service. A regular appointment could be made only by making appointments consistent with requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed contractually cannot be extended to a claim for equal treatment with those who were regularly employed. That would amount to treating unequals as equals.

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In view of the above, the contractual services in the post of Driver in case of 18 petitioners of W.P.(C) No.22689 of 2020 do not qualify for regularisation with regular scale of pay against the sanctioned post and hence their claim for regularisation of contractual services is hereby rejected.”

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Legal perspective of regularization of contractual employees:

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6. With the above backdrop, before proceeding with the matter, it is felt apposite to discuss the legal position with respect to regularisation of service of contractual employees as set out by different Courts.

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6.1. To begin with it is apt to refer to 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 made with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of employees, whose services have been utilized by the Government for a long time:

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“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 .

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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

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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.

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20. In the opinion of this Court, continued

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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

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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.”

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6.2. Learned Single Judge of this Court in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005 [reported at 2016 (I) ILR-CUT 373], made the following observation:

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“7. In Binan Kumar Mohanty Vrs. Water and Land Management Institute (WALMI), 2015 (I) OLR 347 referring to Kapila Hingorani Vrs. State of Bihar, (2003) 6 SCC 1 the apex Court held that the Government companies/public sector undertakings being ‘States’ would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kopila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable.

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8. In Narendra Kumar Ratha and Others Vrs. State of Odisha and Others, 2015 (I) OLR 197, this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in

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public offices. The word ‘employment or appointment’ cover not merely the initial appointment, but also other attributes like salary, increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made in accordance with the provisions and procedure envisaged under the law and guidelines governing the field.

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9. In Prabodh Verma and Others Vrs. State of U.P. and Others, (1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government.

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10. Similar view has also been taken by the apex Court in Km. Neelima Mishra Vrs. Harinder Kaur Paintal and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402 and E.P. Royappa Vrs. State of Tamil Nadu and Another, (1974) 4 SCC 3. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney Vrs. Union of India, 1992 Supp. (3) SCC 217 = AIR 1993 SC 477.”

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6.3. The case of Prasana Kumar Mishra (supra) was carried in appeal before the Division Bench, giving arise to W.A.

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No.4 of 2016 , which was dismissed vide Order dated 11.12.2019 . Said matter, being carried further to the Hon’ble Supreme Court of India, vide Order dated 07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the behest of Biju Patnaik University of Technology, stood dismissed.

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6.4. Showing anxiety so far as regularization of services, in a catena of decisions the Hon’ble Supreme Court of India has succinctly and illuminatingly dealing with the concept of regularization, in the case of Narendra Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238 , has said as follows:

¶230

“The purpose and intent of the decision in Umadevi (3) 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) [(2006) 4 SCC 1] 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 regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid.”

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6.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows:

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“12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception carved out in paragraph 53 of the judgment rendered in Umadevi (3) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still continuing, the same cannot be treated as an ‘illegal engagement’, rather it may be nomenclatured as an ‘irregular engagement’.

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13. In State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410, wherein a distinction has been made with regard to ‘irregular’ and ‘illegal’ engagement, referring to the exception carved out in Umadevi (3) mentioned supra, in paragraph 12 of the said judgment it has been stated as follows:

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‘12. The third aspect of Umadevi (3) which bears notice is the distinction between an ‘irregular’ and ‘illegal’ appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the 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. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies

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of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken

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(a) was not in exigencies of administration; or

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(b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or

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(c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides.”

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6.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC OnLine Ori 267, it has been observed as follows:

¶244

“9. With regard to the regularization of the services of the petitioners, a mention has been made in Annexure-4 that the petitioners being irregular recruits, their regularization is not permissible under the State Government Rules. But this condition made in the restructuring order in Annexure-4 so far as it relates to the petitioners cannot be applicable in view of the fact that the petitioners have been appointed against regular vacancies available in the regular scale of pay admissible to the post. But in view of their continued service for more than 10 years, their cases are covered by the ratio of the judgment of the apex Court in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR 2006 SC 1806, wherein the apex Court has held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular appointment of duly qualified persons against

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sanctioned posts, who have worked for 10 years or more can be considered on merits and steps to be taken as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows:

¶248

‘53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 recruitments are regular undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be

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reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.’

¶252

10. The object behind the exception carved out in this case was to permit regularization of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. Similar question came up for consideration before the apex Court in Civil Appeal No. 2835 of 2015 (arising out of SLP (Civil) No. 20169 of 2013 disposed of on 13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265]. In paragraphs 12 and 13, the apex Court has held as follows:

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‘12. Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, this Court held as under:

¶254

‘7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled:

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(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

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(ii)

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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. The appointment of such employee should not be even illegal, 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.’

¶260

13. Applying the ratio of Umadevi’s case, this Court in Nihal Singh Vrs. State of Punjab, (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:

¶261

‘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

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

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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

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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.’***”

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6.7. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716; Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022.

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6.8. In the case of Union of India Vrs. Central Administrative Tribunal, (2019) 4 SCC 290 the following is the observation:

¶271

“25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Umadevi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (‘the Regularisation Rules’) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In

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doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Umadevi [(2006) 4 SCC 1], ML Kesari [(2010) 9 SCC 247] and Narendra Kumar Tiwari [(2018) 8 SCC 238].

¶275

26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority list in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be considered in accordance with law. The Tribunal has

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denied back-wages but has ordered a notional fixation of pay and allowances. While affirming that direction, we also direct that persons who have crossed the age of superannuation will be entitled to the computation and payment of their retiral dues on that basis. This exercise shall be carried out within a period of three months from the receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the concerned workmen, the Appellants shall do so.”

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6.9. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639 , it has been stated as follows:

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“*** 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 . ***”

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6.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I) ILR-CUT 695 , wherein relevant portion of the Judgment runs as follows:

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“7. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no doubt the petitioner had approached the tribunal seeking regularization of his services. Regularization in service law connotes official

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formalisation of an appointment, which was made on temporary or ad hoc or stop gap or casual basis or the like, in deviation from the normal rules of applicable norms of appointment. Such formalisation makes the appointment regular. The ordinary meaning of regularisation is “to make regular” according to The Shorter Oxford English Dictionary, 3rd Edition, and according to Black’s Law Dictionary, 6th Edition, the word “regular” means:

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‘Conformable to law. Steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. Usual, customary, normal or general. Gerald Vrs. American Cas. Co of Reading, Pa., D.C.N.C., 249 F, Supp. 355, 357. Made according to rule, duly authorised, formed after uniform type; built or arranged according to established plan, law, or principle. Antonym of “casual” or “occasional,” Palle Vrs. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290.’

¶287

8. The above being the meaning of “regular”, as per the common parlance given in dictionary, in B.N. Nagarajan, Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the apex Court held that the effect of such regularization would depend on the object or purpose for which the regularization is made or the stage at which it is made. Once regularized, the procedural infirmities which attended the appointment are cured. Regularization, however, does not necessarily connote permanence.

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9. The word ‘regular’ or ‘regularisation’ do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to

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condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Relying on the Judgments of the apex Court in B.N. Nagarajan Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the Constitution Bench of the apex Court in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 has also taken the same view, which has also been followed by the apex Court in Hindustan Petroleum Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2 SCC 717 and also in Hindustan Aeronautics Ltd. Vrs. Dan Bahadur Singh, (2007) 6 SCC 207.

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10. Temporary or ad hoc or stop gap or casual basis or the like appointments are made for various reasons. An emergent situation might make it necessary to make such appointments. Since the adoption of the normal method of regular recruitment might involve considerable delay regulating in failure to tackle the emergency. Sometimes such appointments were to be made because although extra hands are required to meet the workload, there are no sanctioned posts against which any regular recruitment could be made. In fact in the case of ad hoc or casual appointees, the appointments, are in the majority of cases, not against sanctioned posts and the appointments are made because of the necessity of workload and the constraints of sanctioning such post (mainly on financial consideration) on permanent basis. Needless to say that filling up vacancies against sanctioned posts by regularisation is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 and 16 of the

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Constitution by not making the offer of employment to the world at large and allowing all eligible candidates equality of opportunity to be considered on merits. If that be so, considering the emergent necessity of filling up of vacancies and allowing the petitioner to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned.

¶296

***

¶297

12. In view of above constitutional philosophy, whether Courts can remain as mute spectator, is a matter to be considered to achieve the constitutional goal in proper perspective. But all these questions had come up for consideration and decided by the Constitution Bench of the apex Court in Umadevi (3) mentioned supra. The factual matrix of the case in Umadevi (3) arose consideration a for from judgment of Karnataka High Court. In some of the cases, the Karnataka High Court rejected the claims of persons, who had been temporarily engaged as daily wagers but were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent employees and their entitlement to all the benefits of regular employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the State or local bodies. These claims were rejected by the Division Bench of the Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the

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mater being considered by the Constitution Bench arose because of two earlier orders of reference made by a Bench of two-Judge and subsequently by a Bench of three-JudgeSecretary, State of Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and Secretary, State of Karnataka Vrs. Umadevi (2) (2006) 4 SCC 44, respectively, as they noticed the conflicting opinions expressed by the earlier 3 Bench judgments in relation to regularization.”

¶301

6.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C) No. 19951 of 2020, vide Judgment dated 09.09.2021 , the Single Bench of this Court has made the following observation:

¶302

“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

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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.”

¶306

6.12. 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 before the Division Bench bearing W.A. No. 777 of 2021, 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:

¶307

“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

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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.”

¶311

6.13. Noticing the Judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others Vrs. Umadevi (3), (2006) 4 SCC 1 , in Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407 the observation of this Court runs as follows:

¶312

“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 .

¶313

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. ”

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Analysis and discussions:

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7. As per data regarding each of the petitioners enumerated in tabular form in the impugned Order dated 07.08.2021, the Commissioner of Commercial Tax &

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Goods and Services Tax, Odisha is candid in supporting the case of the petitioners that they participated in the interview conducted by the Selection Committee/Commercial Tax & Goods and Services Tax Organisation pursuant to advertisement published in the Office Notice Board. Such course being followed by the said Organisation with the consent/knowledge of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, at this distance of time he cannot be allowed to be heard that he or his subordinates committed mistake while engaging the petitioners as drivers and throughout these years since 2008 his office and his subordinate office utilised the services of the drivers for the purpose of departmental works.

¶319

7.1. It is also transpired from the said data given in the tabular form that the petitioners faced process of selection by appearing at the interview conducted by the Selection Committee. Therefore, there can be no denial that recruitment process was followed in absence of appropriate rules put in place at that relevant period.

¶320

7.2. At paragraph 5(b) of the counter affidavit filed by the opposite parties through Joint Commissioner of Commercial Tax & Goods and Services Tax, it has been admitted by stating thus:

¶321

“The petitioners were appointed as contractual drivers against the post created/sanctioned by the Government. The petitioners 1, 3 to 8 and 10 to 11 were selected for

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contractual appointment by Selection Committee constituted at the level of their respective appointing authorities through advertisement in Office Notice Board followed by interview which was not the appropriate procedure for recruitment to the post of Driver. The petitioner No.2 was selected and appointed by the the Joint Commissioner of Commercial Tax, Sambalpur Range and the petitioner No.9 was appointed by the Commissioner of Commercial Taxes, Odisha on consideration of their applications.”

¶325

7.3. It is queer to notice that when the engagements of drivers ranging from 2008 to 2013 were being made with the knowledge and approval of the Commissioner of Commercial Tax & Goods and Service Tax, Odisha, Cuttack, he could dispute his own method and manner of selection process.

¶326

7.4. The basic ground as is apparent from the impugned Order dated 07.08.2021 seems to be that the eligibility criteria specified in General Administration Department Notification No.26108/Gen., dated 17.09.2013 read with No.1066/Gen, dated 16.01.2014 was not satisfied for the purpose of consideration of regularization of contractual appointments on completion of six years of satisfactory contractual service.

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7.5. For ready reference both the Resolutions are reproduced hereunder:

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“GAD-SC-RULES-0009-2013—26108/Gen Government of Odisha

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General Administration Department

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***

¶333

RESOLUTION

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Bhubaneswar dated the 17th September, 2013.

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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.

¶336

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.

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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:

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1. Regular Appointment.—

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(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.

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(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.

¶343

(3) Consequent upon regular appointment under the contractual post, if any, shall get re-converted to regular sanctioned post.

¶344

(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.

¶345

2. Conditions of Service on Regular Appointment.—

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(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.

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(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.

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(3) Other conditions of service:

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(a) The other conditions of service shall be such as has been provided in the relevant recruitment rules.

¶352

(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.

¶353

3. Interpretation.—

¶354

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.

¶355

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.

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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.

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By Order of the Governor NITEN CHANDRA

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Special Secretary to Government ”

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*** *** ***

¶362

[No. 1066-GAD-SC-RULES-0009/2013/Gen.] General Administration Department RESOLUTION

¶363

The 16th January, 2014

¶364

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.

¶365

1. As per General Administration Department Resolution No. 26108/Gen., Dated the 17th September, 2013, the following are the mandatory eligibility conditionalities for regularlzation of contractual appointees/engagements.

¶366

(i) Contractual appointments/engagements must have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or 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,

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(ii) Such Contractual appointments/engagements must have been made following the recruitment

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procedure prescribed for the corresponding regular posts, and

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(iii) Principle of reservation of Posts must have been followed in case of such Contractual appointments/engagements.

¶372

In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolution unless the mandatory eligibility conditionalities described above are fulfilled.

¶373

2. 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.

¶374

3. In order to prevent misuse of the aforesaid Resolution, it is felt necessary to put appropriate mechanism in place to ensure that the necessary conditionalities as mentioned in Para. 1 are met.

¶375

4. Government, therefore, after careful consideration have been pleased to decide in the following manner.

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(a) Proposal for regularization of contractual appointees/engagements as per the aforesaid Resolution shall be considered and approved by a High Power Committee to be constituted

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under the Chairmanship of the Secretary of the relevant Department in which the concerned Head of Department and FA/AFA of the Department shall be Members.

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(b) In case the matter pertains to Administrative Department, then the High Power Committee shall be constituted under the Chairmanship of the Secretary of the Department with Special Secretary/Additional Secretary in-charge of the office establishment and FA/AFA of the Department as Members.

¶381

(c) While considering the cases of regularization, High Power Committee shall at the outset ensure that the concerned appointments fulfil the mandatory eligibility conditionalities as elucidated in Para. 1 above and thereafter consider the case on the basis of the stipulations contained under the heading ‘Regular Appointments’ of the General Administration Department Resolution No.26108/Gen, Dated the 17th September, 2013.

¶382

5. This Resolution has been issued with the advice of Finance Department communicated to General Administration Department vide their DOR No.5660ACSF, dated the 19th December, 2013.

¶383

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

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Secretary, Odisha Public Service Commission/Secretary. Odisha Staff Selection Commission/Secretary, Odisha Sub-ordinate Staff Selection Commission. Bhubaneswar.

¶387

By Order of the Governor NITEN CHANDRA Special Secretary to Government”

¶388

7.6. From the aforesaid Resolutions, it is crystal clear that in order to consider regularization of contractual appointees/engagements, besides such contractual posts are created with the concurrence of the Finance Department, recruitment procedure prescribed for the corresponding regular posts and principles of reservation of posts were required to be followed.

¶389

7.7. In the present cases of the petitioners, there is no cavil that the posts were created with sanction of the Government and the Finance Department concurred for the same. Besides this, the authorities at the Commercial Tax & Goods and Services Tax Organisation were well aware of the recruitment procedure, yet they, as employers, have with eyes open put the advertisement in the Office Notice Board and the Selection Committee selected the drivers and appointment/engagement letters were issued in their favour. There is no dispute about unblemished service rendered by the petitioners and it is also undeniable that the authorities at the Commercial Tax & Goods and Services Tax Organisation have been utilising their services throughout these

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years, since 2008-2013 till date without any complaint from any quarter.

¶393

7.8. The objection as to adherence to the principles contained in the ORV Act, it is the employer, namely the Commissioner Commercial Tax & Goods and Services Tax, who happens to be author of the impugned order, was required to have kept in mind the necessity of compliance of such reservation policy. After engaging the drivers on contractual basis, which is stated to have been renewed annually since their engagement till date, when the regularization of service fell for consideration, the very authority could not be allowed to shun his responsibility by saying that at the relevant point of engagement these criteria were not followed.

¶394

7.9. Nonetheless, these criteria stipulated in the aforesaid Resolutions have come to be published much after the engagement of these petitioners-drivers. Furthermore, notwithstanding such Resolutions having come to exist in the year 2013 and 2014, till date these petitionersdrivers have been given extensions and there is no objection as to discharge of duties. It is manifest from the data provided by the Commercial Tax & Goods and Services Tax Organisation in the counter affidavit referred to above that the petitioners have completed six years of satisfactory service and by now more than 10 years.

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7.10. These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their hopes and expectations for indefinite future with unresponsive indifference. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the Sword of Damocles over their head.

¶398

7.11. It is fact admitted by the Commercial Tax & Goods and Services Tax Organisation that the engagements of the petitioners against vacant sanctioned posts were made after the Selection Committee upon interview selected them in connection with advertisement published on the Office Notice Board. 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 the 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

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“regularisation” in service can be permissible if the following conditions are fulfilled:

¶402

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.

¶403

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.

¶404

7.12. It is manifest from record that by now the petitioners have completed more than 10 years of service as per Umadevi (3), (2006) 4 SCC 1 [although the Government 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 Commercial Tax & Goods and Services Tax Organisation including the Commissioner of Commercial Tax & Goods and Services Tax, Odisha employed the petitioners and extended their terms in service voluntarily and continuously for more than ten years.

¶405

7.13. In view of discussions made supra as regards legal position, the appointment/engagement of the petitioners should not be illegal, even if irregular. It is trite that where the appointments are not made or continued

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against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But in the instant case, as there is no complaint with respect to possession of the prescribed qualifications and the petitioners have been working against sanctioned posts, and have been selected by undergoing the process of selection, such appointments could neither be said to be illegal nor irregular.

¶409

7.14. Noteworthy to refer to the Order dated 06.12.2021 passed in W.A. No.231 of 2016 [ Vice Chairman, State Council for Technical Education & Vocational Training, Odisha ] and batch, wherein it has been observed as follows:

¶410

“In each of these appeals, the respondent has worked as contractual watchman for over ten years. It is also stated in the counter affidavit filed in the writ petition in paragraph 13 by the present appellants that there were in fact five vacancies in sanctioned posts of watchman. The only distinction sought to be made is that for benefiting by the decision in Secretary, State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1, their appointments had to be merely ‘irregular’ and not ‘illegal’.

¶411

The fact remains that the respondents have been working continuously as watchmen. It is not the case of the appellant that they are not qualified to be employed as watchman. Given the fact that the respondents have worked as watchmen on contract basis for over ten years, it is obvious that the appellant requires their services. In the circumstances, this Court is not inclined to interfere

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with the impugned order of the learned Single Judge requiring the appellants to consider the cases of the respondents for regularization.

¶415

The appeals are dismissed.”

¶416

7.15. Following observation in Order dated 10.05.2018 of this Court in State of Odisha Vrs. Jatin Kumar Das, W.P.(C) 6661 of 2018 [S.L.P.(C) No.18642 of 2018 against said Order got dismissed by the Supreme Court on 06.08.2018] is noteworthy:

¶417

“However, while parting with the order, we may note that whatever may be the mode of engagement/appointment, there is concurrence of the Finance Department and the employees in question were engaged in different Departments of the Government and rendered their services uninterruptedly. Besides that, mode of engagement adopted and selection process followed was consciously adopted and law prevalent at the relevant time for engagement of contractual employees was scrupulously followed under the aegis of Government functionaries. But, surprisingly, after utilizing their services for more than a decade, when question of bringing them under regular establishment arises, they (employees) are pushed to a corner. Government functionaries in a welfare State should refrain from adopting hire and fire policy. The action taken amounts to gambling with the career of the employees, some of whom might have been overaged to compete for employment.”

¶418

7.16. So long as the Commercial Tax & Goods and Services Tax Organisation does not furnish any material on record to show that the exercise of selection process was undertaken without administrative exigencies and the

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process of selection is tainted with the vice of nepotism, bias or mala fides , there can be no gainsaying that the petitioners are liable to be regularised.

¶422

8. Though the aspect of adherence to the provisions of the ORV Act, 1975 has been referred to above, it may be worthwhile to deal with said point by supplementing with the view expressed by the Hon’ble Supreme Court in this regard.

¶423

8.1. The stance of the Commissioner of Commercial Tax & Goods and Services Tax as reflected in his Order dated 07.08.2021 to refuse regularisation of service of the petitioners is liable to be interfered with inasmuch as the Hon’ble Supreme Court in such context has observed in the Order dated 21.11.2022 passed in S.L.P.(C) No.95 of 2019 as follows:

¶424

“Having heard learned counsel appearing for the petitioner and in the peculiar facts and circumstances of the case and considering the fact that the respondents herein/original applicants were continued since 2008 against the regular posts and completed six years of contractual service, they were entitled to the benefit of Resolution dated 17.09.2013. The submission made on behalf of the respondents that at the relevant time when they were appointed, the reservation was not followed and, therefore, they are not entitled to regularisation is concerned, the petitioner/State cannot be permitted to take such a stand after continuing them on contractual basis for approximately six years. No

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interference of this Court is called for. The Special Leave Petition stands dismissed.

¶428

Pending application(s), if any, shall stand disposed of.”

¶429

8.2. In State of Odisha Vrs. Biswamitra Parida, W.A. No.822 of 2020, vide Order dated 10.02.2021 it has been observed by this Court as follows:

¶430

“In view of the Resolution dated 17.09.2013, since the respondents have already completed the required years of continuous service/engagement and posts were created pursuant to the direction of the learned Court, the appellants-opposite parties should not have engaged the respondents on contractual basis. Therefore, the appellants opposite parties should regularize the service of the respondents in accordance with the Resolution dated 17.09.2013 of the General Administration Department.

¶431

Considering the above facts, it is not disputed that similar questions on principles of ORV Act which were not followed earlier, series of writ petitions were disposed of which were confirmed by the Apex Court in SLP No.18642 of 2018 dated 06.08.2018 in the case of State of Odisha & Anr. Versus Jatin Kumar Das which arises out of Original Application No.2172(C) of 2015 and batch of cases. In the said Original Application, the learned Tribunal has already dealt with the said issue having not followed the Rules of the ORV Act at paragraph-8 of the judgment dated 17.05.2017 and Original Applications were disposed of by the Tribunal wherein the following specific finding was given:

¶432

‘the ORV Posts and Services Act 1975 has no application to the posts to be filled up through contract in terms of Section-3(d) of the said Act. The respondents failed to

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produce any paper indicating the amendment of Section 3(d) of ORV Act, 1975 so also they could not able to produce the documents that there was any other statutory and mandatory provision overriding section 3(d) referred to above for application of the reservation principle while issuing contractual engagement/appointment in favour of the applicants during the year 2005.’

¶436

However, pursuant to the direction of this Court to take instruction, learned Additional Government Advocate submitted that the Resolution dated 17.09.2013 passed by the General Administration Department for regularization of the DLR, daily wages employees shall be applicable in the case of present respondents.

¶437

In view of the above facts, all the writ petitions were disposed of confirming the order of Tribunal and the said orders of the writ petitions were confirmed by the apex Court in Special Leave Petition on the same issue. Rightly the learned Single Judge has directed the appellantsState authorities to regularize services of the Respondents petitioner in terms of the above facts and circumstances narrated in the above paragraphs. Therefore, we are not inclined to interfere with the impugned order dated 03.09.2020 passed by the learned Single Judge in W.P.(C) No.22112 of 2020. Accordingly, the Writ Appeal is dismissed.”

¶438

8.3. Said matter was carried to the Hon’ble Supreme Court in S.L.P.(C) No.6851 of 2021 [ State of Odisha Vrs. Biswamitra Parida ] wherein the following Order was passed on 30.06.2021:

¶439

“ We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution.

¶440

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¶442

2 The Special Leave Petitions are accordingly dismissed.

¶443

3 Pending application, if any, stands disposed of.”

¶444

8.4. For another reason the ORV Act, 1975 has no application to the present context; for that the State Government has introduced amendment to Section 3 thereof by virtue of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Ordinance, 2023 [published in Odisha Gazette, Extraordinary No.1996, dated 19.08.2023], which has been given effect to “at once”. Later said Ordinance has been promulgated as the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Amendment Act, 2023 [published in Odisha Gazette, Extraordinary No.2543, dated 07.11.2023], which came into force with effect from 19.08.2023. Sub-section (2) of Section 3 as inserted by virtue of said amendment reads as, “Notwithstanding anything contained in sub-section (1), reservation shall apply to appointment made or to be made to all tenure posts or contractual posts or schematic posts which are to be regularized against the sanctioned posts.” No ambiguity can possibly be entertained. Cursory glance at said amendment, which specifies the effective date as 19.08.2023 (prospective amendment), it is perceived that prior thereto the ORV Act, 1975, had

¶445

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¶447

no application to contractual posts for consideration of regularisation against the sanctioned posts.

¶448

8.5. In such view of the matter, the impugned Order of the Commissioner of Commercial Tax & Goods and Services Tax cannot be sustained inasmuch as non-adherence to the provisions of the ORV Act, 1975 has been taken as a factor to dispel the claim of the petitioners for regularization in service.

¶449

9. To contend that the ruling in the decision rendered in Patitapaban Dutta Dash (supra) [Single Bench as got confirmed in Division Bench] cannot be made applicable to the present fact-situation of the cases of the petitioners, it has been pointed out by the learned Additional Standing Counsel by way of written note that against the said decision of this Court , the Government of Odisha has moved the Hon’ble Supreme Court of India in S.L.P.(C) No.16949 of 2023 and batch, wherein following Order was passed on 14.08.2023:

¶450

“SLP(C) Nos. 16949/2023, 16945/2023

¶451

Issue notice, returnable on 11th September, 2023.

¶452

2. Mr. B.S. Tripathi, learned Advocate appearing on behalf of Mr. Siddharth Jain, Advocate-on-Record, on caveat, waives notice for the respondents.

¶453

3. Counter affidavit shall be filed within four weeks.

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¶456

4. In the meantime, further proceedings in Contempt Petition, if filed, before the High Court alleging noncompliance of the impugned order shall remain stayed.

¶457

SLP(C) No. 17393/2023

¶458

Issue notice and tag with SLP(C) No. 16949/2023.”

¶459

9.1. It appears from the above, the Judgment dated 12.04.2023 of Division Bench of this Court in Patitapaban Dutta Dash, W.A. No. 777 of 2021, (2023) (I) ILR-CUT 906 has not been stayed.

¶460

9.2. At this stage, reference to principle discussed 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:

¶461

“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.

¶462

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:

¶463

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¶465

‘*** 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. ***’

¶466

49. The honourable Supreme Court in the case of Sri Baradakanta Mishra Vrs. Bhimsen Dixit, (1973) 1 SCC 446, held as follows :

¶467

‘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.

¶468

It is calculated not only to undermine the Constitutional authority and respect of the High Court, generally, but is also

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¶471

likely to subvert the rule of law and engender harassing uncertainty and confusion in the administration of law. ’

¶472

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:

¶473

‘*** 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 quasijudicial 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 .’

¶474

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¶476

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.

¶477

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) :

¶478

‘*** 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. ***’

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¶481

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) :

¶482

‘*** 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.’

¶483

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. ”

¶484

9.3. Matter in the said Orissa Power Generation Corporation Ltd. (supra) 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:

¶485

“ Heard the learned counsels for the parties and perused the relevant material. We do not find any legal and valid ground for interference.

¶486

The Special Leave Petition is dismissed.

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¶489

Contempt proceedings against Mr. A.C. Nayak, Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur is directed to stand closed.”

¶490

9.4. The following observation of the 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:

¶491

“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.”

¶492

9.5. With the well-settled proposition of law, the mere fact that the order of this Court is not ‘acceptable’ to the Government/Department 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.

¶493

Conclusion:

¶494

10. Given the delineated scope of consideration for regularisation in service vis-à-vis proposition of law, it is

¶495

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¶497

apparent that each reason ascribed in Order dated 07.08.2021 of the Commissioner of Commercial Tax & Goods and Services Tax, Odisha vide Annexure-17 cannot be countenanced.

¶498

10.1. It is manifest that the rejection of claim of the petitioners was on account of: non-adherence to conditionalities specified in General Administration Department Resolutions No.26108/Gen., dated 17.09.2013 read with No. 1066/Gen., dated 16.01.2014; and the appointments must have been made against sanctioned post with concurrence of the Finance Department. In this respect it has candidly been admitted by the opposite parties in their counter affidavit that the petitioners were appointed as contractual drivers against the post created/sanctioned by the Government.

¶499

10.2. Second aspect is with respect to following the proper procedure of selection. In the first place, either the subordinate officer or the Commissioner of Commercial Tax & Goods and Services Tax, Odisha chose to publish the advertisement in the Office Notice Board. It is admitted in the counter affidavit that each of the petitioners have faced interview undertaken by the Selection Committee. In view of Umadevi (3), (2006) 4 SCC 1 and other cases namely, Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265 and Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716 made it abundantly clear that the

¶500

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¶502

engagement if made against sanctioned post, but recruitment process as per rules was not followed, then such appointment/engagement could be considered as “irregular”, but not “illegal”. In the present case, no material was placed to the effect that during 2008-2013, when the petitioners were engaged, there was in vogue set of recruitment Rules. Therefore, with the knowledge and consent of the Commissioner of Commercial Tax & Goods and Services Tax such process of selection by the Selection Committee was adopted and having engaged pursuant thereto, the services of the petitioners were exploited during these years till date by extending the term of service, as admitted by the opposite parties. Thus, the reason to refuse regularise the service of the petitioners is found to be incorrect.

¶503

10.3. The third reason ascribed based on condition specified in the aforesaid Resolutions is that the principles of the ORV Act, 1975 was not followed. In this regard the finding of this Court is based on earlier decided cases of this Court against which the Hon’ble Supreme Court dismissed special leave petition and interdicted by stating that the State cannot be permitted to take such a stand after continuing the employees on contractual basis for (approximately) six years.

¶504

10.4. Drawing distinction from what has been spelt out in Umadevi (3), (2006) 4 SCC 1, in the impugned Order in Annexure-17 it has been stated that the irregular

¶505

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¶507

appointment could be regularized, if the contractual employee continued for 10 years. Again such stance of the opposite parties cannot be held to be sustained inasmuch as by now the petitioners have completed 10 years. Nonetheless, in terms of the General Administration Resolutions referred to above clearly made it a principle so far as the State of Odisha is concerned, it is six years. Therefore, by the time representation is considered by the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, while some of the petitioners completed six years, some others completed ten years. It is, thus, observed that the ratio laid down in the case laws referred to supra are not being followed in its proper perspective.

¶508

10.5. As it appears the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, while considering the representation of the petitioners, failed to take into account each case of contractual appointees whose services have been regularised, in order to maintain parity in approach. In the course of hearing the learned counsel appearing for the petitioners has furnished for perusal of this Court very many Office Orders to illustrate that the cases of contractual appointees were taken up and they have been considered for regularisation in service. It seems from the tenor of letter of appointments regularising contractual employees of Commercial Tax & Goods and Services Tax Organisation

¶509

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¶511

as also other Departments of the State Government that individual case of the petitioners has not been considered in right earnest. It has been held in State of Karnataka Vrs. C. Lalitha, (2006) 2 SCC 747 that service jurisprudence evolved by the Supreme Court of India from time to time postulates that all persons similarly situated should be treated similarly. Further, Raman Kumar Vrs. Union of India, 2023 SCC OnLine SC 1018 has restated the exposition of law as stated in Ravi Verma Vrs. Union of India, 2018 SCC OnLine SC 3860 that the act of regularizing the services of some employees and not regularizing the services of the others is discriminatory and violative of Article 14 of the Constitution of India. The objection raised against such proposition by the learned Additional Standing Counsel placing reliance on State of Uttar Pradesh Vrs. Arvind Kumar Srivastava, (2015) 1 SCC 347 that the cases of the petitioners relate to contractual engagement in the post of driver whereas the consideration of regularisation in service by different Department as also the Commercial Tax & Goods and Services Tax Organisation related to contractual engagees of post other than driver is liable to be repelled.

¶512

11. Having accepted the position that the petitioners have been engaged against sanctioned post upon being selected by the Selection Committee in connection with advertisement published by the Commercial Tax &

¶513

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¶515

Goods and Services Tax Organisation, the claim of the petitioners could not have been denied or disputed by the Commissioner of Commercial Tax & Goods and Services Tax, more so when he himself and his subordinates have utilised the services of the drivers appointed in such manner.

¶516

11.1. After allowing the petitioners to work for more than six years or ten years, on specious plea of non-fulfilment of conditionalities stipulated in the Resolutions dated 17.09.2013 and 16.01.2014 by the self-same authority who appointed and/or had the knowledge of having appointed through his subordinate authorities, the petitioners ought not to have been deprived of being considered for regularisation in their service.

¶517

12. Under the aforesaid premises, the opposite party No.2 while considering the representation of the petitioners pursuant to direction of this Court in Judgment dated 21.06.2021 passed in W.A. No.79 of 2021, failed to have regard to the principles as set forth by the Hon’ble Supreme Court of India as also this Court in the context of regularisation in service of contractual employees, the Order dated 07.08.2021 is clearly vitiated, being untenable. The reasons ascribed for the conclusions arrived at therein are found to be inconsistent with the settled position of law as discussed above. The opposite party No.2-the Commissioner of Commercial Tax & Goods and Services Tax having not passed conscientious

¶518

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¶520

order, the impugned Order at Annexure-17 of the writ petition is liable to be quashed and this Court does so.

¶521

13. On finding the reasons ascribed by the Commissioner of Commercial Tax & Goods and Services Tax, Odisha, Cuttack not in consonance with the rulings of the Hon’ble Supreme Court as also this Court, having thus quashed his Order No.1245-SMNG-HC-51/2020/ CT&GST, dated 07.08.2021 vide Annexure-17, there is no option but to direct the opposite parties to consider the claim of each of the petitioners for regularisation in service in the light of discussions made in the foregoing paragraphs. It goes without saying that in the event of regularisation in service of the petitioner(s), he shall be entitled to all consequential services and financial benefits in accordance with law. This Court hopes and trusts that the opposite parties shall take pragmatic view of the matter within a period of three months from today.

¶522

14. In the result, the writ petition stands disposed of with the above direction, but in the circumstances, there shall be no order as to costs.

¶523

(MURAHARI SRI RAMAN) JUDGE

¶524

High Court of Orissa, Cuttack The 16^th August, 2024//LAXMIKANT/SUCHITRA

¶525

Signature Not Verified

¶526

Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 16 - Aug - 2024 20:19:20

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Bijay Kishore Nath v. State of Odisha

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Bijay Kishore Nath v. State of Odisha

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