Bharat Naik Vs State of Odisha

By filing the present writ application the petitioners have approached this Court for the second time with a prayer for a regularization of their service. The petitioners who are working as sweeper uninterruptedly for almost two decades under the administrative control the Superintendent SVPPGIP (Sishu Bhawan), Cuttack have prayed for quashing of the impugned order under Annexure-18 and to issue a writ of mandamus

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directing the Opposite Party No.2 to regularize the service of the petitioner w.e.f. the date of completion of six years of service as sweepers under the administrative control of Opposite Party No.2.

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The factual background leading to filing of the present writ application, in a nutshell, is that on 21.09.2005 an advertisement was published by the Office of the Opposite party No.2 inviting applications for appointment to the post of Sweepers at Sishu Bhawan, Cuttack. As per advertisement two posts belonging to SEBC category and one post belonging to SC & ST category each and two posts for UR category were advertised under Annexure-1 to the writ application. Pursuant to the aforesaid advertisement the petitioners along with others participated in the selection process. Finally the petitioners were selected and they were appointed as Sweepers at Sishu Bhawan, Cuttack vide appointment letter dated 24.11.2015 under Annexure-2 to the writ application.

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While the petitioners were discharging their duties as Sweepers diligently and sincerely, the Opposite Party No.2 wrote a letter to the DMET, Odisha on 22.08.2011 with a request to regularize the service of the petitioners under Annexure-3 to the writ application. However, such issue was kept pending at the level of the DMET, Odisha and no final decision was taken thereon. While this was the position, the G.A. & P.G. Department, Govt. of Odisha issued resolution dated 17.09.2013 containing provisions for regularization of existing contractual Group-C & D employees subject to the fact that the persons who are being regularized are not holding any post in contravention of any statutory rules or executive instruction. Thereafter, another resolution was published on 16.01.2014 with regard to

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regularization of service of Group-C & D employees by the G.A. & P.G. Department, Govt. Odisha. In the said resolution certain eligibility criteria have been laid down with regard to the regularization of service of such adhoc/temporary Group-C & D employees.

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The averments made in the writ application further reveals that the Opposite Party No.2 recommended the case of the petitioners for regularization of their service to the Office of the DMET, Odisha. Further, it appears that the Office of the DMET, Odisha forwarded such application to the Government. The aforesaid facts is evident from the letter No.694 dated 13.01.2015 under Annexure-8 issued by the Director of Health Services, Odisha to the Government. Such letter has been written in the context of regularization of contractual service Group-C & D employees working under the Administrative Control of H. & F.W. Department. Govt. of Odisha. The relevant annexure to such letter reveals the name of the Opposite Party No.2 - Institution at serial No.3 and the same reveals that post involved as “Sweeper” and that their regularization has been certified by the appointing authority and recommendation has been made to the Government.

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The documents annexed to the writ application further reveals that several communications were made with the government with regard to the regularization of service of the petitioners. Cross-correspondences were going on between the government and the Opposite Party No.2 for long time, but no final decision has been taken with regard to the regularization of the service of the petitioners. Being aggrieved by the executive inaction in regularizing the service of the present petitioners, the petitioners earlier approached this Court by filing in W.P.(C)

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No.28197 of 2022. This Court disposed of the said writ application vide order dated 21.11.2022 thereby directing the Opposite Party No.2 to consider the case of the petitioners in the light of law laid down by the Hon’ble Supreme Court in the case of Secretary , State of Karnataka –v.- Uma Devi, reported in (2006) 4 SCC 1 and Basanta Kumar Barik vs State of Odisha and others by this Court decided in WPC(OA) No.616 of 2017 decided on 26.11.2021 within a stipulated period of time.

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After disposal of the above noted writ application the petitioners approached the Opposite Party No.2 by filing a detailed representation under Annexure-13 to the writ petition. The said representations have been rejected by the Opposite Party No.2. Since the order passed by this Court was not implemented, the petitioners were constrained to file two contempt application before this Court bearing CONTC No.1926 of 2023 & CONTC No.4506 of 2023. Finally vide order dated 31.07.2023 the Opposite Party No.2 considering the representation of the petitioners, and finally rejected the prayer of the petitioners for regularization of their service. Being aggrieved by such rejection order as well as the inaction of the opposite parties in not regularizing the services of the petitioners in the post of Sweepers, the petitioners have once again approached this Court by filing the present writ application.

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Learned counsel for the petitioners at the outset contended that the petitioners were duly selected and appointed by following a valid selection procedure. He further submitted that although sanctioned posts were there, the services of the petitioners were never regularized. In support of his contention learned counsel for the petitioners specifically referred to the

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documents annexed to the writ application to submit before this Court that the Opposite Party No.2 had recommended the case of the petitioners for regularization of their service and eventually the same was sent to the government for approval. Contrary to such stand, the Opposite Party No.2 has passed the impugned order under Annexure-18 rejecting the prayer of the petitioners for regularization of their service. On such ground, learned counsel for the petitioners further contended that the impugned order under Annexure-18 is unsustainable in law.

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In course of his argument learned counsel for the petitioners further contended that taking into consideration the fact that the petitioners have been working uninterruptedly as Sweepers for more than two decades the case of the petitioners should have been considered and their services should have been regularized by now. In the aforesaid context, learned counsel for the petitioners drawing attention of this Court to the judgment of this bench in Sitaram Behera vs. State of Odisha and others; W.P.(C) No.8236 of 2024 contended that the case of the petitioners is squarely covered by ratio laid down by this Court in the abovenoted judgment.

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He also referred to latest judgments of the Hon’ble Supreme Court which have also been taken note of by this Court in Sitaram Behera’s Case ( Supra ). Particularly referred to the judgment of the Hon’ble Supreme Court in Jaggo v . Union of India and others, reported in 2024 SCC Online SC 3826, in Sripal and another V. Nagar Nigam, Gaziabad (decided on 31^st January, 2025) in Civil Appeal No.8158-8179 of 2024). By drawing attention of this Court to the ratio laid down in the

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above noted judgments learned counsel for the petitioners emphatically argued that the case of the petitioners is squarely covered by such ratio and accordingly the Opposite Parties be directed to regularize the service of the petitioners as expeditiously as possible.

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A counter affidavit has been filed on behalf of the StateOpposite Party Nos.1 & 2 and in the counter affidavit which has been sworn by the Superintendent of SVPPGIP (Sishu Bhawan) wherein an initial objection has been taken with regard to the maintainability of the writ application. Further, counter affidavit reveals that in terms of notification of the labour and employment department, Govt. of Odisha dated 29.12.2001 the petitioners were provisionally engaged as Sweepers on daily wage basis against the abolition of six numbers of regular Sweeper posts by the Government. It has also been mentioned that such appointment on daily wages basis were subject to the petitioners furnishing an undertaking that they shall not claim any regular scale of pay and other allowances. The counter affidavit further discloses that the Opposite Parties have stated that the petitioners are not covered under the resolution of the Govt. dated 17.09.2013. On a close scrutiny of the Para-6 of the counter affidavit it appears that the opposite parties have also taken a stand that the cases of the petitioners for regularization of their service could not be placed before the high level committee for consideration of their case for regularization of their service as the engagement of the petitioners were against the abolition of similar number of regularized posts on daily wage basis.

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The Opposite Parties in Para-7 of the counter affidavit have categorically admitted that the petitioners on being engaged

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on daily wage basis in the year 2005 have been discharging duties continuously till now. It has also been stated that they do not come under the G.A. & P.G. resolution dated 17.09.2013 and as such it is not feasible on the part of opposite parties to regularize the service of the petitioners on completion of six years of service on contractual basis and that the representation of the petitioners has already been rejected by the H & F.W. Department, Govt. of Odisha vide order dated 04.11.2016 pursuant to the order passed by the learned Administrator Tribunal. It has also been stated that the ratio laid down by the Hon’ble Supreme Court on the case of Umadevi’s Case ( Supra ) shall not apply to the case of the petitioners with regard to the recommendation made by the Opposite Party No.2 for regularization of the service of the petitioners. It has been stated in the counter affidavit that the Opposite Party No.2 had sought for certain clarification by such letter and as such the same does not justify the claim of the petitioners for regularization of their service.

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In reply to the order passed by this Court in the earlier writ application it has been stated in the counter affidavit that the representation of the petitioners has been disposed of by passing a speaking and reasoned order by taking into consideration the judgment of the Hon’ble Supreme Court as has been mentioned in the said representation. Furthermore, the representation of the petitioners having been disposed of by passing a speaking order, the same does not call for any interference of this Court at this stage. Accordingly, it has been prayed that the writ application is liable to be dismissed as the same is devoid of merit.

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Heard learned counsel for the petitioners as well as learned counsel for the State. Perused the pleadings of the respective parties well as documents file by either side.

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On a careful analysis of the pleadings of the respective parties and further taking note of the submissions made by learned counsels from both sides, this Court found that the petitioners by filing the present writ application have basically prayed for regularization of their service as Sweepers under the Opposite Party No.2. On the factual side it appears that the petitioners who were appointed in the year 2005 on being duly selected remains un-controverted. The question, now therefore, falls for adjudication in the present writ application is as to whether the petitioners who were appointed on daily wage basis on being duly selected and are discharging their duties for almost two decades are entitled to be regularized in service. The petitioners were admittedly working under the administrative control of the Opposite Party No.2 i.e. a well-known Children’s Hospital of the State. The nature of the work they were performing as sweeper is perennial in nature there is no doubt about such fact. In the aforesaid factual backdrop, this Court is of the considered view that the case of the petitioners is squarely covered by the ratio laid down by the Hon’ble Supreme Court in the judgment in Jaggo’case ( supra ) and Sripal’s case ( supra ).

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Moreover, this Court had an occasion to analyze the aforesaid judgment of the Hon’ble Supreme Court in the matter of Sitaram Behera vs. State of Odisha and others; W.P.(C) No.8236 of 2024 . In Sitaram Behera’s Case ( Supra ), the petitioners were initially engaged as casual labourer w.e.f. 21.10.1990 and despite discharging such duties for several

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decades uninterruptedly their services were not being regularized. This Court after analysing the factual scenario involved in that case. further taking note of the law laid down by the Hon’ble Supreme Court in the abovenoted two judgments has categorically come to a conclusion that the practice adopted by the Opposite Parties in engaging persons on temporary/ad hoc basis for a long period, particularly keeping in view the fact that the work they were discharging is perennial in nature, such practice amounts to unfair labour practice. Additionally, it has also been categorically observed that the Opposite Parties-State cannot allowed to use the judgment of the Hon’ble Supreme Court Umadevi’s case ( supra ) as a seal to cover up the illegalities committed by them by engaging persons by back door entry method and at the same time allowing them to continue in service for several decades. Finally, the said writ petition was allowed by this Court by quashing the impugned rejection order dated 02.02.2024 under Annexure-6 and with a further direction to the Opposite Party No.2 to regularize the service of the petitioners by absorbing the petitioners against any Group-D post.

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Reverting to the facts of the present case, this Court found that the petitioners on being duly selected were engaged on daily wage basis after abolition of six number of regular posts. However, they were allowed to continue for almost two decades for a meager salary on daily wage basis. It is not disputed that they were continuing uninterruptedly and were discharging their duties to the satisfaction of the higher authorities. Their very continuance for such a longtime is a testament in itself of the fact that the duties they were performing are perennial in nature. In the aforesaid factual backdrop, this Court is of the view that the

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case of the petitioners is squarely covered by the ratio laid down in Sitaram Behera’s Case ( Supra ).

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In view of the aforesaid analysis of factual position as well as taking note of the law governing the field through various judgments of the Hon’ble Supreme Court as well as this Court and keeping in view the law laid down by this Court in Sitaram Behera’s Case ( Supra ), this Court is of the considered view that the rejection of the prayer of the petitioners by the Opposite Party No.2 in the impugned order under Annexure-18 is highly illegal and arbitrarily and the same is unsustainable in law. Accordingly, order dated 31.07.2023 under Annexure-18 is hereby quashed. Further while allowing the writ petition this Court directs the opposite parties to regularize service of the petitioners in the post of Sweeper as against the available vacancy in such post. In the event no such posts are available this Court further directs that supernumerary posts be created to regularize the service of the petitioners to accommodate the petitioner and such creation of post shall continue till the petitioners retire from service. Let the aforesaid direction be carried out within a period of three months from the date of communication of a copy of today’s judgment.

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Accordingly, the writ petition stands allowed. However, there shall be no order as to costs.

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(A.K. Mohapatra) Judge

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Orissa High Court, Cuttack The 14^th July, 2025/ Rubi.

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Signature Not Verified

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Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: OHC Date: 25-Jul-2025 10:21:05

Bharat Naik v. State of Odisha

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Bharat Naik v. State of Odisha

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