Sushil Kumar Kar Vs Principal Secy. to Govt.-Cum-Commnr.,H and Ud Dept.

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.1762 OF 2022

W.P.(C) Nos.30847,30853, 30928,31063,31121, 31143,31149,31164,31183,31241,31261,31280,31291, 31302,31304,31311,31312,31319,31320,31324,31325, 31328,31331,31332,31335,31346,31347,31418,31430, 31431,31449,31465,31482,31773,31940,31943,32079 32147 & 32402 of 2025

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In the matter of an application under Article 226 of the Constitution of India, 1950.

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Sushil Kumar Kar & Petitioners Others …. -versus-

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State of Odisha & Others …. Opposite Parties

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For Petitioner: M/s. S.K. Ojha & S.K. Nayak, Adv.

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For Opp. Parties: M/s. P.K. Panda Addl.Standing Counsel

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PRESENT:

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THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY

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--------------------------------------------------------------------------------Date of Hearing: 21.11.2025 and Date of Judgment: 21.11.2025

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Biraja Prasanna Satapathy, J .

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1. This matter is taken up through Hybrid Mode.

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2. Heard learned counsel appearing for the parties.

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3. Since the present batch of Writ Petitions involve a common issue, all the Writ Petitions were heard analogously and disposed of by the present common order.

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4. All the Writ Petitions have been filed inter alia with the similar prayer which reads as follows:

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Under the circumstances, this Hon’ble Court may be graciously pleased to issue rule NISI calling upon the Opp. parties to show cause as to why the Writ of Mandamus or any other appropriate writ/writs shall not be issued directing the Opposite Parties to extend the benefit of regularising the services of the Petitioners as Accountant with effect from the date(s) they have completed six years of service as per the policy decision of the Government under Annexures6,7 & 8 as has been done by the Panchayatiraj Department and Electronics and Information Technology Department under (Annexures-9,10 & 15 series) and pay them all their service and financial benefits as a regular employee retrospectively;

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If the Opp. Parties failed to show cause or show insufficient cause rule may be made absolute

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And further be pleased to pass any other order/orders as deemed fit and proper;

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And for this act of kindness, the Petitioners shall as in duty bound ever pray.

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5. It is the case of the Petitioners that Petitioners were appointed as against the post of Accountant in terms of the advertisement issued by the State Urban Development Agency on 19.09.2012 under Annexure-3 and by facing due recruitment process. It is contended that on coming out successful in the said recruitment process, petitioners were all engaged on contractual

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basis as against the post of Accountant vide orders issued under Annexure-4 dt.30.05.2013.

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5.1. Learned counsel appearing for the Petitioners contended that since Petitioners were appointed on contractual basis and were allowed to continue as such, in terms of the resolution issued by the G.A. Department on 17.09.2013 under Annexure-6 and further resolution issued by the self-same Department on 16.01.2014 under Annexure-7, Petitioners became eligible and entitled to get the benefit of absorption as against the post of Accountant on completion of 6 years of continuous engagement.

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5.2. It is also contended that subsequent to their appointment on contractual basis as against the post of Accountant, vide Office order dt.30.07.2018 of the Government in Urban Housing Development Department, 129 posts of Accountant were created with due concurrence of the Finance Department so issued on 02.02.2015.

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5.3. It is contended that on the face of such sanction of 129 posts of Accountant so concurred by the Finance Department on 02.02.2015, Petitioners’ claim to get the benefit of regularisation when was not considered, they approached this Court by filing different Writ Petitions. This Court when directed for consideration of their claim in the light of the order passed in W.P.(C ) No.19951 of 2020, such claim was

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never considered and accordingly the present Writ Petitions were filed inter alia with the prayer as indicated hereinabove.

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5.4. Learned counsel appearing for the Petitioners contended that since Petitioners by facing due recruitment process, pursuant to Annexure-3 Advertisement were appointed on contractual basis as against the post of Accountant in the year 2013, in view of the resolution issued by the G.A. Department on 17.09.2013 and 16.01.2014 under Annexures-6 & 7 and the repealing of the 2013 Rules with issuance of the notification on 16.10.2022, Petitioners became eligible and entitled to get the benefit of regular appointment as against the post duly sanctioned vide Office order dt.30.07.2018 under Annexure-13. It is also contended that in view of the recent decisions of the Hon’ble Apex Court in the case of Jaggo Vs. Union of India & Others, 2024 INSC 1034, Shripal & Another Vs. Nagar Nigam, Ghaziabad, 2025 INSC 144 and Dharam Singh & Others VS. State of U.P. & Another, 2025 Livelaw (SC) 818 Petitioners are eligible and entitled to get the benefit of regularisation.

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5.5. Hon’ble Apex Court in the case of Jaggo in Par-

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22 to 25 and 27 held as follows:-

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“22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers'

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rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.

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23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO's Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment.

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24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent

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providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth

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Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than

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the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary's role in rectifying such misclassifications and ensuring that workers receive fair treatment.

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25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address

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short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

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• Misuse of "Temporary" Labels:

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Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

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• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the

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present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

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• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles,

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creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

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• Using Outsourcing as a Shield:

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Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively

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replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

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• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.

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27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment

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practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.”

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5.6 . Hon’ble Apex Court in the case of Shripal in

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Par-14, 15, 17 & 18(IV)has held as follows:-

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“14. ...... More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment.

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15. ……. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature.

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17. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period.

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18.(IV) The Respondent Employer is directed to initiate a fair and transparent process for regularizing the Appellant Workmen within six months from the date of reinstatement, duly considering the fact that they have performed perennial municipal duties akin to permanent posts. In assessing regularization, the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable norms. ”

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5.7. Hon’ble Apex Court in the case of Dharam

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Singh in Paragraph-13,14,15 & 17,18,19 & 20 held as follows:

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13. As we have observed in both Jaggo (Supra) and Shripal (Supra) , outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission’s further contention that the appellants are not “full-time” employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency

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of the challenge to the State’s refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals.

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14 . The learned Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25.11.2003. However, that view overlooks that the writ petition squarely challenged the 11.11.1999 refusal as the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the respondents. In such circumstances, we believe that the High Court was obliged to examine the legality of the State’s stance in refusing sanction, whether in 1999 or upon reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the dismissal without engaging with the principal challenge or the intervening material. The approach of both the Courts, in reducing the dispute to a mechanical enquiry about “rules” and “vacancy” while ignoring the core question of arbitrariness in the State’s refusal to sanction posts despite perennial need and long service, cannot be sustained.

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15. Therefore, in view of the foregoing observations, the impugned order of the High Court cannot be sustained. The State’s refusals dated 11.11.1999 and 25.11.2003,in so far as they concern the Commission’s proposals for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed.

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17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.

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18. Moreover, it must necessarily be noted that “ad-hocism” thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is an institutional discipline that should inform every decision affecting those who keep public offices running.

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19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and

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comparator regularisations, we issue the following directions: i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization /retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from

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24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgement.

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iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgement.

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v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgement.

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20. We have framed these directions comprehensively because, case after case, orders of this Court in such matters have been met with fresh technicalities, rolling “reconsiderations,” and administrative drift which further prolongs the insecurity for those who have already laboured for years on daily wages. Therefore, we have learned that Justice in such cases cannot rest on simpliciter directions, but it demands imposition of clear duties, fixed timelines, and verifiable compliance .As a constitutional employer, the State is held to a higher standard and therefore it must organise its perennial workers on a sanctioned footing, create a budget for lawful engagement, and implement judicial directions in letter and spirit. Delay to follow these obligations is not

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mere negligence but rather it is a conscious method of denial that erodes livelihoods and dignity for these workers. The operative scheme we have set here comprising of creation of supernumerary posts, full regularization, subsequent financial benefits, and a sworn affidavit of compliance, is therefore a pathway designed to convert rights into outcomes and to reaffirm that fairness in engagement and transparency in administration are not matters of grace, but obligations under Articles 14, 16 and 21 of the Constitution of India.

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6. Mr. C.K. Pradhan, learned Addl. Govt. advocate

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on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. party Nos.1 & 2. Placing reliance on the stand taken in Para-14 of the affidavit, learned Addl. Govt. Advocate contended that, since the post of Accountant comes under Municipal cadre, in view of the provisions contained under the Odisha Municipal Finance Service (Method of Recruitment and Conditions of Services) Rules, 2017, the post of Accountant being a Group-B post, the said post is required to be filled up by way of direct recruitment to be conducted by the Orissa Staff Selection Commission. It is accordingly contended that since in terms of the aforesaid 2017 Rules, the post of

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Accountant is required to be filled up by way of the direct recruitment through Orissa Staff Selection Commission, claim of the Petitioners to get the benefit of regularisation as against the sanctioned post of Accountant so issued vide Office order dt.30.07.2018 under Annexure-A/1 cannot be entertained.

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6.1. It is also contended that by the time Petitioners were so appointed pursuant to Advertisement issued under Annexure-3 since provisions of ORV Act was never followed, Petitioners cannot get the benefit of appointment against such sanctioned posts which are required to be filled up by following the reservation principle in vogue.

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7. To the stand taken in the counter affidavit, Mr. S.K. Ojha, learned counsel appearing for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit.

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7.1. It is contended that since Petitioners were all appointed prior to framing of the aforesaid 2017 Rules, and by facing due recruitment process pursuant to

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Annexure-3, provisions of 2017 Rules cannot be made applicable to the claim of the Petitioners. In support of his submission, reliance was placed to a decision of this Court passed on dt. 28.10.2025 in W.P.(C ) No.24653 of 2025 and batch . This Court in Para5.1,6,6.1,6.2 & 6.3 of the said order has held as

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follows:

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5.1. It is the main contention of the learned Addl. Standing Counsel for the State while supporting the impugned rejection that since Petitioners were engaged under the Scheme and the Scheme was closed w.e.f. April, 2015, even though Petitioners were allowed to continue under the Department, but since their very engagement is under a Scheme, they are not eligible and entitled to get the benefit of regularization.

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6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that all the Petitioners with having the requisite qualification and pursuant to the advertisement issued by the Department on 14.07.2012, participated in the selection process as against the post of Asst. Engineer (Civil). On coming out successful in the selection process, all the Petitioners were appointed as Asst. Engineer vide a common order issued on dtd.11.01.2013. Even though Petitioners were all engaged under the Scheme, but it is not disputed that after closure of the Scheme w.e.f. April, 2015, Petitioners were not only allowed to continue, but also they were extended with the benefit of the minimum of the pay scale as applicable to the post of Asst. Engineer now designated as Asst. Executive Engineer with due revision.

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6.1. It is also not disputed that the Junior Engineers engaged under the self-same BRGF Scheme, even after closure of the Scheme, were

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not only allowed to continue, but also they have been regularized.

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6.2. It is also not disputed that after being so appointed under the Scheme and even after closure of the Scheme, Petitioners have been put under transfer to different Urban Local Bodies of the State.

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6.3. It is also found that Petitioners were engaged in terms of the advertisement issued on 14.07.2012 and order of appointment issued on dtd.11.01.2013. The selection and appointment was made in terms of the provisions contained under Rule-6(d) read with Rule-7 of the 1975 Rules. Since the Petitioners were ell engaged in terms of the provisions contained under the aforesaid 1975 Rules by facing due recruitment process, as per the considered view of this Court the provisions contained under the 2016 Rules cannot be made applicable to the claim of the Petitioners.

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7.2. Placing reliance on the aforesaid decision of this

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Court, it is contended that since the Rules were not

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there when the Petitioners were appointed as against the post of Accountant, they cannot be compelled to come through Orissa Staff Selection Commission by facing the recruitment process once again. It is also contended that if by the time Petitioners were appointed, ORV Act was not followed, no fault lies with the Petitioners in that regard.

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8. Having heard learned counsel appearing for the parities and considering the submission made, this

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court finds that all the Petitioners were appointed as against the post of Accountant basing on the Advertisement issued on 19.09.2012 under Annexure-3 and by facing due recruitment process. It is found that all the Petitioners were engaged on contractual basis vide order issued on 30.05.2013 under Annexure-4. However, on the face of continuance on contractual basis, Petitioners were never regularised in terms of the resolution issued by the G.A. Department on 17.09.2013 and 16.01.2014 under Annexures-6 & 7.

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8.1. Not only that claim of the Petitioners pursuant to the earlier passed by this Court in different Writ Petitions, in the light of the decisions in the case of Patitapaban Dutta Dash & Others Vs. State of Odisha & Others, W.P.(C ) NO.19951 of 2020, disposed of on 09.09.2021 was also not considered. Therefore, it is the view of this Court that in view of such long continuance on contractual basis and in view of the notification issued by the G.A. Department on 16.10.2022, Petitioners’ claim to get the benefit of regularisation require=

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s a fresh consideration.

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8.2. This Court is also of the view that since Petitioners were all engaged in the year 2013 and the relevant Recruitment Rule was published vide notification issued on 21.03.2017 under AnnexureG/1, provisions of the said Rule cannot be made applicable to the claim of the Petitioners.

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8.3. In view of the aforesaid analysis, this Court is inclined to dispose of the Writ Petition with a direction on Opp. party No.1 to consider the claim of the Petitioners to get the benefit of regularisation against the sanctioned post of Accountant following the decision in the case of Jaggo, Shripal and Dharam Singh and so also the Resolution issued by the G.A. Department on 16.10.2022. Rule-3 of the said Resolution reads as follows:

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3. Repeal- Save as otherwise provided in Rule 4, the Odisha Group-B posts (Contractual Appointment) Rules, 2013 and the Odisha Group “C” and Group “D” posts (contractual appointment) Rules, 2013 are hereby repealed.

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8.4. This Court further directs Opp. party No.1 to take

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a decision as directed within a period of three (3)

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months from the date of receipt of this order. Till such

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a decision is taken, no coercive action shall be taken