Mamata Kumari Sahu vs. State Of Odisha
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order of regular appointment shall be issued by the appointing authority.”
It was followed by the Resolution dated 16th January, 2014 of the G.A Department, Govt. of Odisha as at Annexure-B to the counter affidavit of the State and therein, the following are the mandatory eligibility conditionalities for regularization of contractual appointees/engagements, such as, (i) the contractual appointments/engagements must
have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services; (ii) such contractual appointments must have been made following the recruitment procedure prescribed for the corresponding regular posts; and (iii) principles of reservation of posts must have been followed in case of such contractual appointments/engagements. In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolution unless the eligibility conditionalities described above are fulfilled.
Referring to Annexure-B (supra) and since the conditions stipulated therein are said not to have been satisfied, the opposite parties objected to the regularization of services of the petitioners. The denial to the regularization of services is based on the conclusion that there has been no regular recruitment process held in respect of the petitioners and that the principles of reservation have not been followed. There is no denial to the fact that the appointments of the petitioners have been in respect of the sanctioned posts but on contractual basis evident from Annexure-C. The plea of the opposite parties is that in absence of regular recruitment with open advertisement applying the reservation rule, the petitioners cannot claim regularization of their services.
The Apex Court in Umadevi (3) (supra) held and observed in the following words:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128 : AIR 1967 SC 1071, R.N. Nanjundappa (1972) 1 SCC 409: (1972) 2 SCR 799 and B.N. Nagarajan (1979) 4 SCC 507:1980 SCC (L&S) 4: (1979) 3 SCR 937 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
In M.L. Kesari (supra), the Apex Court held and concluded as follows:
“8. Umadevi (3) (2006) 4 SCC 1 casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) (2006) 4 SCC 1 directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). xxx
The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3) (2006) 4 SCC 1, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3) (2006) 4 SCC 1. If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3) (2006) 4 SCC 1, their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.”
In Amarkant Rai Vrs. State of Bihar & others (2015) 8 SCC 265, the Apex Court held and concluded that there is an expression of general principle against the regularization enunciated in Umadevi (3) (supra) if the following conditions are fulfilled and stated as hereunder:
“11. Elaborating upon the principles laid down in Umadevi (3) case (2006) 4 SCC 1: 2006 SCC (L&S) 753 and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari (2010) 9 SCC 247: (2010) 2 SCC (L&S) 826, this Court held as under:
“7. It is evident from the above that there is an exception to the general principles against „regularisation‟ enunciated in Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753, if the following conditions are fulfilled: (i)The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii)The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”
Applying the ratio of Umadevi (3) case (2006) 4 SCC 1: 2006 SCC (L&S) 753, this Court in Nihal Singh v. State of Punjab (2013) 14 SCC 65: (2013) 3 SCC (L&S) 85 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:
“35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the Executive Government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the Executive Government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However, in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently, no such demand has ever been made by the State. The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.”
In our view, the exception carved out in para 53 of Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753 is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since
there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1-1-2010. 14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.e.f. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar).”
In Jaggo (supra), the Apex Court highlighted upon the misuse of temporary employment particularly in Government institutions leading multifaceted force of exploitation. It would be apposite to make a mention of the observation made in the above decision and the same is reproduced herein below:
“22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' 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.
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 International Labour Organization- Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. 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.
The landmark judgement 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.
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 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:
Misuse of “temporary” Labels:
Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled 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. xxx
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 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.”
The Apex Court in Shripal (supra) concluded that the decision of Umadevi (3) (supra) cannot be served as a shield to justify exploitative engagements persisting for years without the employer undertaking legitimate recruitment. It is also held therein that Indian labour law strongly disfavours perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. It has also been observed therein that bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period and therefore, the employer was directed to initiate a fair and transparent process for regularization of their services within a stipulated period considering continuous service and performance of perennial duties akin to the permanent posts and while assessing such regularization, the employer shall not impose educational or procedural criteria retroactively.
Keeping in view the case laws cited and discussed hereinabove, this Court is to consider whether the petitioners‟ services should have been regularized by the authority concerned. As to the petitioners, this Court finds that there has been a process of recruitment. To claim that the recruitment has not been held in the manner with an open advertisement and hence, regularization of petitioners joined as Junior Stenographers is impermissible cannot be a ground to deny it. This Court finds from Annexure-1 series that the applications were invited for the recruitment of the posts and even necessary tests were conducted. Furthermore, the District Employment Exchange was requested to sponsor the names of the candidates for the posts of Junior Stenographers on contractual basis revealed therefrom, but at the same time, it was followed by a notice dated 20th November, 2008 to invite applications for recruitment in the office of the Deputy Superintendent of Police, Vigilance Unit. Similarly, in respect of other Divisions/Units of the Vigilance Department, applications for recruitment were invited, consequent upon which, the petitioners joined on contractual terms. This Court is inclined to hold that there is a recruitment held and the engagement of the petitioners is not by any illegal means or through a back door entry. It is not that the petitioners made their entry in to the service surreptitiously. Rather, this Court finds that the petitioners were found eligible and appointed against the posts having cleared the selection process, which included a written test. The procedure of recruitment having been followed in respect of the petitioners, this Court finds that one of the conditions of Annexure-19 is fulfilled. It is evident that the appointments have taken place with the posts sanctioned upon receiving the concurrence of the Finance Department and therefore, the conclusion of the Court is that the petitioners could not have been denied regularization. With the completion of six years of services from the date of appointments in view of Annexure-19, according to the Court, the petitioners are eligible for regularization and to deny the same on the ground that the principle of reservation has not been followed, after all of them having worked since long, would be unjustified. The petitioners do have the requisite qualification and they having worked for such a considerable period of time, denial to their regularization on the ground of appointments alleging to be not legal would be improper. A particular selection process is followed and denial of regularization on any such ground taking a stand that there is no open advertisement in recruitment at this distant point of time cannot in any manner be justified. The Government, of course, with the terms and conditions of contractual service, engaged the petitioners. Such engagement of the petitioners in service is continuous and without break. The services of the petitioners‟ continued and extended from time to time and for regularization of their services, in the humble view of the Court, the conditions laid down in Umadevi (3) (supra) are fulfilled as all of them have worked for more than 10 years in duly sanctioned contractual posts and that the appointments are not illegal, may at best be said as irregular. The only rider is that if the appointments are not made against sanctioned posts and where the persons appointed to the posts had no prescribed minimum qualification, it shall have to be treated as illegal. In the above decision, it has been categorically held that where a person employed possesses prescribed qualification and is working against a sanctioned post and selected without undergoing process of open competitive selection, such appointment is considered as legal, which means, for regularization of services, it shall not stand as a bar.
The petitioners have joined in contractual services and worked for more than six years, hence, according to the Court, are eligible and entitled to regularization in terms of Annexure-19. Any such denial to the regularization of the petitioners for not complying the conditions imposed in the resolution and the decision of the Government in the resolution followed in 2014 cannot be sustained on the premise that a recruitment process was held and after having gone through a competitive selection, they joined in service and it has been against sanctioned posts created with the concurrence of the Finance Department and such service continued uninterruptedly. For the reason that the nature of the services to be continuous and perennial and therefore, the decision opposing regularization shall have to be interfered with and this Court taking cognizance of the decisions of the Apex Court in Jaggo & Shripal (supra) and also the ratio decided in Umadevi (3) case besides Nihal Singh & others Vrs. State of Punjab & others (2013) 14 SCC 65 is inclined to hold that continuous service without
regularization of the petitioners would be a travesty of justice and hence, the decision of the Authority concerned in that regard is liable to be quashed.
Accordingly, it is ordered.
In the result, the writ petition stands allowed. As a necessary corollary, the opposite parties are directed to initiate the exercise vis-à-vis regularization of the services of the petitioners in the posts of Stenographers in terms of Annexure-19 and to issue formal letters of appointment to them in accordance therewith concluding the entire exercise at the earliest and preferably within a period of eight weeks from the date of receipt of a copy of this judgment.
(R.K. Pattanaik)
Judge Alok
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