Asisa Kumar Mishra Vs State of Odisha

____________________________________________________________ For Petitioner : M/s Avijit Patnaik, S. Mohapatra, R.K. Pati, S.P. Moharana, A.N. Das, (Mrs.) S. Patnaik, S. Deepak, T. Patnaik, Advocates

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For Opp. Parties : Mr. S.K. Jee, Addl. Government Advocate [OP No.1] Mr. T.P. Acharya, Advocate [OP Nos.2 to 4]

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____________________________________________________________

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In WP(C) No. 19087 OF 2023 Asisa Kumar Mishra ...… Petitioner

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-Versus-

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State of Odisha & Ors. .…. Opp. Parties

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Advocate(s) appeared in this case:-

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____________________________________________________________ For Petitioner : M/s Avijit Patnaik, S. Mohapatra, R.K. Pati, S.P. Moharana, A.N. Das, (Mrs.) S. Patnaik, S. Deepak, T. Patnaik, Advocates For Opp. Parties : Mr. S.K. Jee, Addl. Government Advocate [OP No.1] M/s. T.N. Pattnayak & M. Ojha, Advocates [OP Nos.2 to 4]

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____________________________________________________________

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In WP(C) No. 19089 OF 2023 Mitali Sahoo ...… Petitioner

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-Versus-

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State of Odisha & Ors. .…. Opp. Parties

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Advocate(s) appeared in this case:-

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____________________________________________________________ For Petitioner : M/s Avijit Patnaik, S. Mohapatra, R.K. Pati, S.P. Moharana, A.N. Das, (Mrs.) S. Patnaik, S. Deepak, (Ms.) T. Patnaik, Advocates For Opp. Parties : Mr. S.K. Jee, Addl. Government Advocate [OP No.1] M/s. T.N. Pattnayak & M. Ojha, Advocates [OP Nos.2 to 4]

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CORAM:

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HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD

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Date of hearing & judgment : 17.09.2025

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PER DIXIT KRISHNA SHRIPAD,J .

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Petitioners are knocking at the doors of Writ Court essentially for a

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direction to the OP-University and to its officials to regularize their services or absorb them in regular service with effect from the dates of their initial engagement. All they participated in a walk-in-interview, pursuant to advertisement dated 10.12.2012 at Annexure-1. That was held on 08.01.2013 on the instructions of the Vice-Chancellor. The Director of

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DDCE (Directorate of Distance and Continuing Education) prepared the select list on 15.01.2013 and name of the petitioners figured therein. Petitioner-Ms. Mitali Sahoo was selected as Librarian and other two petitioners were selected as Junior Executive. This document or its content is not disputed.

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2. Learned counsel for the petitioners vehemently argues that his clients, having been duly appointed on the authority of the Vice-Chancellor after due selection, have been serving the University uninterruptedly and sans any complaint. The Syndicate, vide Resolution dated 21.06.2017, has accorded Grade Pay, inter alia, to these petitioners, and that vide decision

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dated 28.10.2014 admitted these petitioners to EPF Scheme. They have been regularly working and the University has been in the perineal requirement of their services, which fact is vouched by their very continuance beyond a decade. Therefore, the counsel submits, they should be directed to be regularized in service. Learned counsel drew attention of the Court to the relevant provisions of the Orissa Universities Act, 1989, the Orissa University Fist Statutes and the Orissa University Appointment and Promotion of Non-Teaching Employees Rules, 1991. She also pressed into service Apex Court decision in Marathwada University v. Seshrao Balwant Rao Chavan ,¹ more particularly paragraphs 18, in support of her contentions.

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3. A battery of panel lawyers and learned AGA oppose the petition as under:

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Petitioners have not been appointed by the competent authority; there are no sanctioned posts against which their services have been engaged all through; the higher rank officials like Librarian & Assistant Executives ordinarily cannot claim regularization of their services without a due selection process, which is a sine qua non . Petitioners are not justified in placing reliance on Annexure-13 series, whereby lower rank

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1 AIR 1989 SC 1582

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employees have been regularized in service, the facts of their cases being miles away from that of petitioners herein. They too pressed into service the decision of Apex Court in State of Karnataka v. Umadevi ,² . Lastly, they submit that in the very engagement orders it is specifically stipulated that the petitioners would not seek regularization of their services, which were only for a short period. They press into service this stipulation seeking dismissal of petitions.

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4. Having heard leaned advocates appearing for the parties, having perused the petition papers and also having adverted to law & rulings, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

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4.1. The first submission of learned panel advocates appearing for the University that these petitioners were not appointed by the competent authority, namely, the Registrar, is liable to be rejected for more than one reason:

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(i) Section 21(1) of 1989 Act, as it obtained before amendment did read

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as under:

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“ 21. "Appointment of Officers, teachers and other employees of the University - (1) Unless otherwise specified in this Act, all officers of the University, shall be

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2 (2006) 4 SCC 1

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appointed by the Vice-Chancellor on the recommendation of a Selection Committee consisting of Director, the Registrar, one member selected by the Syndicate from among themselves and, wherever necessary, two experts appointed by the Vice-Chancellor:

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Provided that in respect of the posts fully financed by the University Grants Commission under an approved scheme, the selection of person(s) for appointment to such posts shall be made in accordance with the specific guidelines, if any, issued by the said commission.”

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This provision is as clear as Gangetic waters. The services of these petitioners were engaged when subsequent amendment was not even contemplated. Therefore, who became the competent authority post

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amendment of the Act, is irrelevant, what is relevant being, who was the competent authority as the law then was. Obviously, it was the ViceChancellor only.

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(ii) The Apex Court in Marathwada supra at paragraph 18 has observed as under:

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“ 18. The Vice-Chancellor in every university is thus the conscious keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as nonacademic affairs….The Vice- Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University (Section 11(6)(a)). He has also emergency powers to deal with any untoward situation (Section 11(4)). The power conferred under sec. 11(4) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take

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that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the implied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non-academic affairs….”

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There are similar provisions in the 1989 Act. Section 6(11) vests the Executive Authority of the University in the Vice-Chancellor. Section 6(12) empowers him to preside at the meetings of Senate. Section 6(16) gives power to review the performance of all employees of the University. To run the administration, he has to inevitably make ad hoc appointments, when making regular one would take its own time. Apparently, the services of the petitioners are engaged on his order, after conducting walkin-interview.

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(iii) Learned counsel for the petitioners is right in drawing the attention of Court that the Syndicate, vide decision dated 28.10.2014, extended EPF benefit to all the employees, including these petitioners. Subsequently, it made another decision on 21.06.2017 extending the Grade Pay to the petitioners along with other similar circumstanced personnel. It is significant to note that the Vice-Chancellor and several officials of the Government happened to be Constituent Members of the Syndicate/Senate. Therefore, neither the Government nor the University can gainfully contend that they had no role in the matter of engaging the services of

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petitioners, who have put in a long & spotless service of more than 12 years.

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(iv) Lastly, whatever alleged irregularity existed in petitioners’ services being initially engaged, that would wither away year by year. After all, the petitioners’ engagement of services by no stretch of imagination can be stated to be illegal. In any event, it is not open to the University which engaged their services to contend that these poor employees gained entry to the service illegally.

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4.2. The contention of learned AGA and learned panel counsel that during the period of initial engagement it had been specifically stipulated that the engagement of the petitioners was purely temporary, and that they shall not seek regularization, is factually true. The initial engagement was only for a period of three months and therefore, the stipulation would certainly have come to the rescue of OPs, had the petitioners not been continued beyond three months. Here is a case that the University needs their services and accordingly they have been continued without any interruption. Regularization has been developed as a branch of Service Jurisprudence both by the Hon’ble Supreme Court & High Courts in the country, precedent by precedent. The contention would have merited due consideration, had it been sans elements of unconscionability. Therefore,

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at this length of time such a contention founded on estoppel, cannot be entertained.

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4.3. Learned counsel for the petitioners is right in telling the Court about the availability of vacancy position, as has been made available by the University pursuant to RTI application filed by them wherein there are several vacancies in Groups ‘A’ & ‘B’. What is reflected in the information furnished by the University belies the assertion of the panel advocates that the posts have not been sanctioned by the Government. However, they are right in saying that the specific posts of Librarian & Assistant Executive have not been mentioned in the list of approved/ sanctioned posts. It hardly needs to be stated that any University or any Educational Institution worth mentioning has to have a library and therefore, the services of Librarian have become inevitable. Therefore, the positions, against which petitioners have been working, can be accommodated in Group ‘A’ or ‘B’, as the case may be, after ascertaining all the relevant factors. That being the position, a wholesale denial of regularization cannot be justified.

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4.4. Learned counsel for the petitioners brings to my notice the decision of a Coordinate Bench of this Court in Writ Appeal No. 857 of 2024, etc. between Orissa Water Supply and Sewerage Board v. Bijay Kumar Samal

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and others disposed of on 30.07.2025 in support of her reply to panel counsel’s reliance on Umadevi supra . It referred to Shripal v. Nagar Nigam, Gajiabad ,³ , wherein at para-17 the Apex Court observed as under:

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“In light of these considerations, the Employer’s discontinuation of the Appellant Workmen stands in violation of the most basic labour law principles. Once it is established that their services were terminated without adhering to Sections 6E and 6N of the U.P. Industrial Disputes Act, 1947, and that they were engaged in essential, perennial duties, these workers cannot be relegated to perpetual uncertainty. While concerns of municipal budget and compliance with recruitment Rules merit consideration, such concerns do not absolve the Employer of statutory obligations or negate equitable entitlements. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period.”

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Similarly, in Jaggo v. UOI ,⁴ the Hon’ble Supreme Court, having surveyed

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the law relating to regularization from Umadevi to Vinod Kumar v. UOI ,⁵ ,

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has observed at para-20 as under:

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“20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly “irregular,” and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on

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3 MANU/SC/0139/2025

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4 2024 INSC 1034

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5 (2024) 1 SCR 1230

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a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization….”

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4.5. Learned counsel for the petitioners vehemently submits that no

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useful purpose will be served by just directing consideration of the case of her clients for regularization. There is some force in this submission, inasmuch as the stand taken by the University & its officials makes it apparent that somehow petitioners would be continued in the same status without regularization. Learned panel advocates also expressed the financial difficulty, the regularization would bring about. Day in & day out, this Court has been observing the cases coming before it in scores, wherein the directions for consideration either have remained unimplemented or met with ritualistic compliance. In the given fact matrix of the case and all kind of contentions being taken to defeat even legitimate causes, this Court is of a considered opinion that a positive direction for regularization specifying the time limit for compliance has to be made, departing from usual patterns of orders for consideration.

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In the above circumstances, these petitions are favoured. A Writ of Certiorari issues quashing the impugned orders coupled with a Writ of Mandamus to consider & regularize the services of petitioners with effect from the dates of their initial engagement. However, the financial benefits

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shall be granted with effect from the date of filing of Writ Petitions, i.e., 13.06.2023. The entire exercise has to be accomplished within a period of eight (8) weeks.

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Now, no costs.

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Web copy of judgment to be acted upon by all concerned.

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……..………………………. Dixit Krishna Shripad, Judge

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Orissa High Court, Cuttack, The 17^th September, 2025/Prasant

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Signature Not Verified

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Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 19-Sep-2025 15:11:11