Padmanav Mishra Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.12702 of 2019

Padmanava Mishra …. Petitioner -versus…. State of Odisha and Others Opp. Parties W.P.(C) No.27979 of 2022 Padmanava Mishra …. Petitioner -versus…. State of Odisha and Others Opp. Parties

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Advocates Appeared in this case

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For Petitioner - Mr. K. K. Swain, Advocate For Opp. Parties - Mr. S. B. Panda, AGA

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CORAM : MR. JUSTICE DIXIT KRISHNA SHRIPAD MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing & Judgment: 29.01.2026

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--------------------------------------------------------------------------------------- Chittaranjan Dash , J .

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Heard learned counsel for both sides.

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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Page 1 of 16

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The present writ petitions, W.P.(C) No.27979 of 2022 and W.P.(C) No.12702 of 2019, involving common parties, substantially overlapping facts and interconnected issues, are taken up together and are being disposed of by this common judgment.

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W.P.(C) No.12702 of 2019 has been filed assailing the order dated 28.06.2019 passed by the Odisha Administrative Tribunal, Cuttack Bench, in O.A. No.883(C) of 2016, whereby the claim of the Petitioner for regularisation of service and grant of equal pay for equal work was rejected.

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W.P.(C) No.27979 of 2022 has been filed calling in question the subsequent order dated 27.07.2022 passed by the Director, Economics and Statistics, Odisha, rejecting the Petitioner’s claim for regularisation in purported compliance with earlier directions of this Court.

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In view of the fact that both the writ petitions pertain to the service claim of the same Petitioner and challenge successive orders passed at different stages, they are disposed of together by this common judgment.

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The Petitioner was initially engaged on 01.03.1996 as a Chowkidar-cum-Sweeper in the office of the District Statistical Officer, Khordha, against a vacant post which had been created

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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by the State Government earlier on 30.07.1994. Since his initial engagement, the Petitioner continued to discharge the duties attached to the said post uninterruptedly. From time to time, the District Statistical Officer recommended his case to the higher authorities for engagement on ad hoc or temporary basis as well as for enhancement of remuneration. Despite long continuation in service, the Petitioner’s status was not regularised. Aggrieved thereby, he approached the Odisha Administrative Tribunal by filing O.A. No.2077(C) of 2007, which was disposed of on 20.09.2007 with a direction to pay him daily wages at the minimum rate for the entire period of service rendered and to allow him to continue, if there was a vacant post and a continuous requirement of work. Alleging non-compliance of the said order, the Petitioner thereafter initiated contempt proceedings. Instead of implementing the Tribunal’s direction, the post of Chowkidar-cum-Sweeper was transferred by order dated 21.01.2011 from the office of the District Statistical Officer, Khordha to another establishment. The Petitioner challenged the said order by filing O.A. No.444(C) of 2011, which, upon abolition of the Tribunal, stood transferred to this Court and was renumbered as WPC (OAC) No.444 of 2011. By order dated 09.02.2022, this Court disposed of the said writ petition directing the authorities to consider the Petitioner’s case for regularisation

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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Page 3 of 16

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in the light of the decisions of the Hon’ble Supreme Court in Secretary, State of Karnataka vs. Umadevi , (2006) 4 SCC 1 , State of Karnataka vs. M.L. Kesari, (2010) 9 SCC 247, and Amarkant Rai vs. State of Bihar, (2015) 8 SCC 265 .

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In the meantime, the Petitioner had again approached the Tribunal by filing O.A. No.883(C) of 2016 seeking regularisation of service and equal pay for equal work. The said application came to be dismissed by order dated 28.06.2019, holding that the Petitioner was a part-time sweeper and not engaged against a sanctioned post. Challenging the said order, the Petitioner filed W.P.(C) No.12702 of 2019, which is one of the writ petitions under consideration.

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Pursuant to the order dated 09.02.2022 passed by this Court in WPC (OAC) No.444 of 2011, the Petitioner submitted representations to the competent authorities seeking regularisation. During the pendency of such consideration, a policy decision was taken on 07.04.2022 not to engage Chowkidar-cum-Sweeper on contractual basis in District Planning and Monitoring Units and to outsource such work. Apprehending disengagement, the Petitioner approached this Court by filing W.P.(C) No.9962 of 2022, which was disposed of

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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on 21.04.2022 with a direction to consider his case in terms of the earlier decisions of the Hon’ble Supreme Court.

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Subsequently, by order dated 27.07.2022, the Director, Economics and Statistics, Odisha rejected the Petitioner’s claim for regularisation, holding that his case was not covered by the decisions relied upon by this Court. The said order is the subject matter of challenge in W.P.(C) No.27979 of 2022. During the pendency of W.P.(C) No.27979 of 2022, this Court, by interim order dated 28.10.2022 passed in I.A. No.14469 of 2022, directed that the Petitioner shall not be disengaged from service. It is the case of the Petitioner that despite the said interim protection, he was subsequently disengaged from service.

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At a later stage, the matter was referred to mediation; however, no settlement could be arrived at between the parties. Consequently, W.P.(C) No.12702 of 2019, challenging the order dated 28.06.2019, and W.P.(C) No.27979 of 2022, challenging the order dated 27.07.2022, have been placed before this Court for final adjudication and are being considered together by this common judgment.

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Mr. Swain, learned counsel for the Petitioner, submits that the Petitioner has rendered uninterrupted service for more than two decades. It is contended that the nature of duties discharged

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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Page 5 of 16

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by the Petitioner was continuous and perennial, and his engagement was never casual or intermittent. Learned counsel submits that despite repeated recommendations made by the District Statistical Officer from time to time and despite directions issued by the Odisha Administrative Tribunal as well as this Court, the Petitioner’s service was never regularised. Instead, successive orders were passed rejecting his claim on erroneous grounds, particularly by treating him as a part-time employee not engaged against a sanctioned post. It is further contended that the order dated 28.06.2019 passed by the Tribunal suffers from a patent error, inasmuch as it ignores the long length of service rendered by the Petitioner and the availability of sanctioned work and proceeds on an incorrect factual premise. The subsequent order dated 27.07.2022, rejecting the Petitioner’s claim purportedly in compliance with the directions of this Court, is assailed as mechanical and non-speaking, having failed to properly apply the ratio laid down by the Hon’ble Supreme Court in Umadevi (3) (supra) , M.L. Kesari (supra) and Amarkanti Rai (supra). Learned counsel further submits that the Petitioner’s case is squarely covered by the recent decisions of the Hon’ble Supreme Court in Jaggo vs. Union of India , 2024 SCC OnLine SC 3826 , Shripal & another vs. Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC 221 and Dharam Singh vs.

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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State of Uttar Pradesh and another , 2025 INSC 998 , wherein long-serving daily wage, contractual or part-time employees discharging perennial duties have been held entitled to protection against arbitrary disengagement and to consideration for regularisation. It is also urged that the disengagement of the Petitioner during the subsistence of the interim order dated 28.10.2022 passed by this Court is wholly illegal and arbitrary. According to learned counsel, the action of the authorities reflects a colourable exercise of power and a deliberate attempt to defeat judicial orders. On the aforesaid grounds, learned counsel for the Petitioner prays for quashing of the impugned orders dated 28.06.2019 and 27.07.2022, and for issuance of appropriate directions for regularisation of the Petitioner’s service with consequential benefits.

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Per contra, learned Additional Government Advocate appearing for the State opposes the writ petitions and submits that the Petitioner was never appointed against a regular sanctioned post in accordance with the prescribed recruitment rules. It is contended that the Petitioner was engaged only on a part-time / daily wage basis and, therefore, cannot claim regularisation as a matter of right. Learned AGA submits that the order dated 28.06.2019 passed by the Odisha Administrative Tribunal is well reasoned and does not call for any interference,

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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as the Tribunal has correctly held that the Petitioner was not holding a sanctioned post and was not appointed through a regular process of selection. It is further submitted that the subsequent order dated 27.07.2022 was passed after due consideration of the directions issued by this Court and in the light of the law laid down by the Hon’ble Supreme Court in Umadevi (3) (supra) and allied decisions. According to learned AGA, the Petitioner’s case does not satisfy the conditions laid down therein for consideration of regularisation. Learned AGA also contends that that the policy decision of the State to outsource such services cannot be faulted with and does not warrant judicial interference. On the aforesaid grounds, learned AGA prays for dismissal of both the writ petitions.

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Having heard both the learned counsels, at the outset, it is necessary to advert to the earlier orders passed by the Odisha Administrative Tribunal in respect of the Petitioner. By order dated 20.09.2007 passed in O.A. No.2077(C) of 2007, the Tribunal directed the authorities to pay the Petitioner daily wages at the minimum rate applicable for the post for the entire period he had worked and further directed that he be allowed to continue in service so long as there existed a vacant post and a continuous requirement of work. The said order attained finality and was acted upon by the State, which continued the Petitioner in

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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service and paid him minimum wages in terms of the Tribunal’s direction.

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The continued engagement of the Petitioner pursuant to judicial directions assumes significance while examining the contention of the State that the Petitioner’s initial entry into service was illegal. It is well settled that an appointment made dehors the recruitment rules cannot ordinarily be regularised. However, in the present case, the Petitioner was not only continued in service for decades, but such continuation was under the express protection of judicial orders and with payment of minimum wages as directed by the Tribunal. The State, having implemented the said directions and having derived continuous service from the Petitioner, cannot now be permitted to contend that the Petitioner’s engagement was wholly illegal so as to deny him any consideration for regularisation.

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The plea of illegality at the entry point must also be examined in the context of the passage of time and the conduct of the employer. Where an employee has rendered long and uninterrupted service, not by stealth or misrepresentation, but with the knowledge of the employer and under judicial orders, the rigour attached to the initial mode of engagement gradually diminishes. At a certain point, the continued acquiescence of the

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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employer, coupled with payment of minimum wages and utilisation of service against a perennial requirement, erodes the force of the argument that the engagement was void ab initio. To hold otherwise would permit the State to approbate and reprobate at the same time.

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The record clearly discloses that the Petitioner has been in continuous service since 1996, performing duties of a permanent and perennial nature. The Tribunal itself, while directing payment of minimum wages and continuation in service, implicitly recognised the existence of a continuous requirement of work. The State never chose to disengage the Petitioner immediately after the said order; on the contrary, it retained him in service for years thereafter. Such prolonged continuation cannot be treated as a mere fortuitous circumstance.

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At this juncture, it is apposite to refer to the decisions of the Hon’ble Supreme Court. In Jaggo vs. Union of India (supra), the Court reiterated that where an employee has rendered long years of service and the employer has continuously taken benefit thereof, the State cannot deny relief solely on the ground of irregularity at the initial stage of engagement. Emphasis was placed on the nature of duties discharged, the length of service

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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rendered and the conduct of the employer, rather than on a hyper-technical view of the mode of engagement.

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This Court, in Orissa Water Supply and Sewerage Board vs. Bijay Kumar Samal & Others , passed in W.A. Nos.857 of 2024 and other connected matters , has also held that when employees are continued for long years against posts involving perennial work and are paid minimum wages, the employer cannot indefinitely postpone regularisation by taking shelter under the plea of initial irregularity. The Court emphasised that fairness in public employment is a two-way obligation and that the State is expected to function as a model employer, particularly where it has itself allowed such continuation for a considerable length of time.

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More recently, in Dharam Singh vs. State of Uttar Pradesh , 2025 INSC 998 , the Hon’ble Supreme Court has further strengthened the aforesaid principles, with the relevant portion reproduced below:

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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 comparator regularisations, we issue the following directions:

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i. Regularization and creation of Supernumerary posts : All appellants shall stand regularized with

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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Page 11 of 16

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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.

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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.

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iii. Retired appellants : Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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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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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 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

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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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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Tested on the anvil of the aforesaid principles, the case of the present Petitioner stands on a firm footing. The Petitioner has rendered uninterrupted service since 1996, discharging duties of a permanent and perennial nature, and has been continued in service by the State not merely as a matter of indulgence, but pursuant to binding judicial directions. The authorities have, over the years, accepted the Petitioner’s engagement by paying minimum wages and by extracting continuous service from him, thereby demonstrating clear acquiescence. At this belated stage, the State cannot be permitted to resile from its own conduct and deny consideration for regularisation by raising technical objections relating to the initial mode of engagement. To do so would be inconsistent with the principles of fairness, equity and reasonableness governing public employment.

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The reliance placed by the State on the decision in Umadevi (3) (supra) is misplaced if read in isolation. The Constitution Bench itself carved out an exception in respect of

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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employees who had worked for long periods against sanctioned posts and whose engagement was not tainted by fraud or misrepresentation. The subsequent decision in M.L. Kesari (supra) clarified that the object of Umadevi (3) (supra) was not to perpetuate injustice to long-serving employees who had been allowed to continue by the State itself.

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In view of the discussions made hereinabove, this Court is of the considered view that the impugned orders dated 28.06.2019 passed by the Odisha Administrative Tribunal in O.A. No.883(C) of 2016 and dated 27.07.2022 passed by the Director, Economics and Statistics, Odisha, cannot be sustained. Both orders proceed on an unduly restrictive and technical appreciation of the Petitioner’s engagement, without duly accounting for the Petitioner’s uninterrupted service since 1996, the perennial nature of the duties discharged by him, the continuous acquiescence of the employer, and the binding directions earlier issued by the Tribunal and this Court.

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Having regard to the long years of service rendered by the Petitioner, the nature of work performed, and in the light of the principles laid down by the Hon’ble Supreme Court in Jaggo (supra) , Dharam Singh (supra) and other decisions, this Court is satisfied that the Petitioner is entitled to protection of service and

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W.P.(C) No.12702 of 2019 & W.P.(C) No.27979 of 2022

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to consideration for regularisation. The plea of the State imputing illegality at the initial stage of engagement cannot be accepted at this belated stage, particularly when the State itself has continued the Petitioner and paid him minimum wages pursuant to judicial directions.

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Accordingly, the impugned orders dated 28.06.2019 and 27.07.2022 are hereby quashed. The opposite parties are directed to regularise the service of the Petitioner against an appropriate post commensurate with the duties he has been discharging, and to do so within a period of two months from the date of receipt of this judgment. Until such regularisation is effected, the Petitioner shall be allowed to continue in service without interruption.

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Needless to observe, the Petitioner shall be entitled to all consequential service benefits from the date of regularisation, in accordance with law.

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Both the Writ Petitions are accordingly allowed.

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(Chittaranjan Dash) Judge

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(Dixit Krishna Shripad) Judge

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A.K.Pradhan/Bijay/Sarbani Signature Not Verified

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Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Feb-2026 12:26:53

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W.P.(C ) N o.12702 of 2019 & W.P.(C) No.27979 of 2022

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Padmanav Mishra v. State of Odisha

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Padmanav Mishra v. State of Odisha

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