Subhalaxmi Panda vs. State Of Odisha

disposed of by the following common judgment.

engagement in various contractual posts including the posts held by them. For the posts advertised the required qualifications were indicated in the advertisement with the age criteria and relaxation permissible in respect of women, SEBC, ST & SC candidates. A copy of the advertisement at Annexure-2. Based on the said advertisement, the petitioners applied and accordingly engaged in MKCG Medical College and Hospital, Berhampur on contractual terms with consolidated salaries payable to them. The engagement of the petitioners was extended from time to time on satisfactory performance subject to signing of the agreements as prescribed by the Financial Department offence memorandum No.55764/F dated 31st December, 2004. 4. 1. During continuance of the petitioners, opposite party No.3 requested opposite party No.2 for creation of posts including the posts held by the petitioners by letter dated 27th November, 2013 indicating therein that the same is essential to provide better treatment facilities to patients and also in the smooth management of the hospital on a daily basis. It was also clarified therein by opposite party No.3 that the posts held by the petitioners have been filled up on contractual basis with consolidated remuneration by following a transparent procedure of selection held through a Selection Committee constituted as per the instructions of the Government and regarding payment of their remuneration from out of the Users Funds.

(3) and others (2006) 4 SCC 1; State of Karnataka & others Vrs. M.L. Kesari and others (2010) 9 SCC 247 and Sheo Narain Nagar & others Vrs. State of Uttar Pradesh and another AIR 2018 SC 233. Notwithstanding long and continued services rendered by the petitioners, it is lastly pleaded that their regularization should be directed with formal orders of appointment issued to them in view of the GA Department resolution dated 17th September, 2013, hence, the declaration sought for.

ever since a contrary. It is further submitted that notwithstanding the contractual appointments, the petitioners are entitled to regularization. The contention is that recommendation was made even for creation of posts including that of the petitioners but it has not been acted upon. Mr. Tripathy, learned counsel submit that the petitioners are in service uninterrupted in artificial break and for having the requisite qualification and having been selected through a recruitment and not by any back door entry all of them deserve regularization. The petitioners cannot be denied regularization on any such grounds pleaded including engagement on contractual basis with remuneration paid from the Users Funds of Swasthya Bikash Samiti and therefore, according to Mr. Tripathy, learned counsel regularization should be allowed in view of the decisions (supra). The case laws in Dharam Singh and others Vrs. State of UP and another in Civil Appeal No.8558 of 2018; Jaggo Vrs. Union of India and others 2024 SCC OnLine SC 3826; Shripal and another Vrs. Nagar Nigam, Ghaziabad 2025 SCC Online SC 221 are placed reliance on by Mr. Tripathy, learned counsel to submit that the petitioners are eligible and entitled to regularization in terms of the GA Department resolution dated 17th September, 2013. 9. Mr. Das, learned ASC for the State however opposed regularization referring to a decision of the Apex Court in Mohd. Abdul Kadir and another Vrs. Director General of Police, Assam and others (2009) 6 SCC 611 to contend

that the petitioners having engaged for a specific purpose with their remuneration paid from a fund, therefore, it is Ad hoc or temporary, hence, cannot be considered for such regularization. By citing another decision in Rasmi R.S. and others Vrs. Government of India represented by Secretary to Government, Department of Women and Child Development and others 2019 SCC OnLine Ker 2649 it is contended by Mr. Das, learned counsel that contractual employees under a scheme have no right to claim regularization as their entitled to continue in service on the agreed terms of contract. Referring to another case law mentioned in the name of citation dated 11th December, 2024 it is contended that the petitioners’ regularization cannot be permitted furthermore when such engagement is not against any sanctioned posts created by the Government.

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

• Misuse of “Temporary” Labels: 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.

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

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

• Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively 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. • 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.”

“26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.”

with Annexure-1 addressed to the Superintendent, MKCG, Medical College and Hospital, Berhampur, the petitioners received appointments. In fact, pursuant to Annexure-1, an advertisement was floated vide Annexure-2 inviting applications from aspiring candidates and ultimately, it was followed by the appointment orders i.e. Annexure-3. The contractual appointments have been allowed with consolidated remuneration payable to the petitioners. It is claimed by the State that the petitioners are not entitled to any such regularization since engaged on contractual terms. On the other hand, it is opposed with the plea that the petitioners have worked for more than 10 years and even though on contractual basis, when there has been recommendation for creation of sanctioned posts including the posts held by them, such regularization is to be allowed in the interest of justice taking into account the decisions in Jaggo, Shripal and Dharam Singh (supra).

were appointed along with the petitioners and their services have been regularized on completion of six years of service, a copy of which is at Annexure-15. So, it is pleaded by the petitioners that they should be treated equally without any such discrimination.

serving employees retained through repeated extensions/renewal are needed to be granted protection or where else would they go when not even eligible for applying jobs for being over-aged. In normal course, appointment not against a sanctioned post becomes a hurdle in the regularization of a contractual employee. In view of the decision in Umadevi (3), regularization is considered if one is appointed against a duly sanctioned and vacant post following a process of recruitment and not by a back door entry and it was directed as a one-time measure. In the humble of the Court, the contractual employees cannot be exploited year after year and for decades and in that case, even without a sanction post, the Government as an ideal employer is required to consider their regularization and in cases of severe exploitation to accommodate them with the creation of supernumerary posts. It is not to misunderstood that the Court directs any such supernumerary posts to be created but it is rather desirable for a model employer to act with all fairness to ensure that long serving contractual employees are absorbed instead of going on extending their services without them having a safe and secured future.

long before. It is reiterated that as against the posts allocated vide Annexure-1, the petitioners since joined in service after clearing a selection process held with an advertisement published and continuously worked for more than ten years with any such artificial breaks and do have requisite qualifications to hold the posts irrespective of the fact that the posts could not be created, it is desirable that their services should be regularized by undertaking necessary exercise by the Government to ensure that the contractual engagement ends with absorption.

(R.K. Pattanaik)

Judge

Tudu