Orissa High Court: “Withdrawal of Regularization Orders Without Due Process Cannot Be Sustained”, Directs Reinstatement of Benefits
Safiya Malik
The Orissa High Court has set aside the withdrawal of regularization orders issued to several employees of the Odisha State Police Housing and Welfare Corporation Limited, stating that the decision was taken without following due process. The single-judge bench of Justice Murahari Sri Raman examined the matter and observed, “The petitioners cannot suffer for the lapses, if any, of the authorities.” The court directed the reinstatement of the petitioners’ regularized status, stating, “The respondents are directed to restore the petitioners to the positions they held prior to the issuance of the withdrawal orders and ensure the continuity of their service benefits.”
The petitioners were employed in various capacities, including Peons, Orderly Peons, and Watchmen, in the Odisha State Police Housing and Welfare Corporation Limited. They were initially engaged as daily wage earners in the late 1980s and 1990s, following an application and interview process. Their services were later converted to ad hoc employment.
On June 19, 2009, the Corporation issued office orders granting regularization to the petitioners after the Selection Committee found them eligible. They were placed in the pay scale of Rs. 2550-55-2660-60-3200, with applicable allowances.
However, on May 12, 2010, the Corporation withdrew the regularization orders, citing non-compliance with the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (ORV Act). The withdrawal orders were issued without prior notice to the petitioners, who only became aware of them through a counter affidavit filed in W.P.(C) No.7983 of 2010.
The petitioners challenged the withdrawal, arguing that the Selection Committee had assessed their suitability and that the Corporation had followed due process at the time of regularization. They contended that their employment history and long tenure demonstrated their eligibility for absorption and that the sudden revocation of their regularization was arbitrary and in violation of the principles of natural justice.
The petitioners submitted that they had been in service for decades and that their regularization was granted following an established procedure. They argued that the Corporation could not retroactively deny them benefits based on alleged non-compliance with the ORV Act. The petitioners’ counsel submitted, “The expression ‘retirement’ in Sections 14 and 15 of the Act is used broadly so as to enable all modes of retirement including superannuation and resignation.”
The petitioners also pointed to similar cases where other employees had been granted regularization. They contended, “The act of regularizing the services of some employees and not regularizing the services of some others is indisputably discriminatory and falls foul of Article 14 of the Constitution.”
The Odisha State Police Housing and Welfare Corporation Limited, represented by its counsel, submitted that the petitioners’ regularization orders had been subject to the approval of the Board of Directors, which was not obtained. The respondents contended, “The expression ‘retirement’ used in Section 14 and 15 of the Act of 1954 does not include resignation.”
The respondents further argued that the ORV Act required specific reservation quotas to be followed in recruitment, which had not been done in the petitioners’ cases. They asserted that the withdrawal of regularization orders was necessary to comply with statutory requirements.
The Orissa High Court examined the statutory provisions governing employment and service regularization. It referred to Sections 3, 5, 9, and 10 of the ORV Act, 1975, and stated, “A conjoint reading of Sections 3, 5, 9, and 10 of the ORV Act would lead to the irresistible conclusion that the applicability of the Act must normally be initiated from the very initial stage of recruitment.”
The court recorded that the petitioners had been serving the Corporation for decades and that their appointments had matured into regular employment. It stated, “The petitioners being ad hoc appointees, their appointments have matured into regular appointment in due course of time and long continuation in service by virtue of principles of equity, justice, and good conscience.”
Discussing the role of the State as an employer, the court observed, “The State-Authority/Corporation, being a model employer, cannot be allowed to shun its responsibilities towards the petitioners, who have been exploited for a considerable length of time by extracting their services.”
Addressing the issue of financial constraints cited by the Corporation, the court stated, “If finances are short, engagement of such daily-wage workers could only be for a short limited period and if continuous work is required, it could only do so by creating permanent posts. If finances are not available, take such work which is within the financial means. Why take advantage out of it at the cost of workers?”
The court also found that the Corporation had failed to provide a legitimate reason for treating the petitioners differently from similarly placed employees who had been granted regularization. It stated, “The act of regularizing the services of some employees and not regularizing the services of some others is indisputably discriminatory and falls foul of Article 14 of the Constitution.”
The Orissa High Court quashed the withdrawal orders issued on May 12, 2010, and directed the reinstatement of the petitioners’ regularization. It stated, “The factual background as borne on record tested with the legal position enunciated by Courts without any ambiguity in mind leads to conclude that the Office Order No.E-38/06/3489/OPHWC, dated 12.05.2010 and Office Order No.E-31/06/3492/OPHWC, dated 12.05.2010 indicating withdrawal of Office Orders granting regularization of the petitioners in service are in conflict with the principles enunciated in the decisions referred to, relied on and discussed supra.”
The court further ordered, “Under such premises, the Office Order No.E-38/06/3489/OPHWC, dated 12.05.2010 and Office Order No.E-31/06/3492/OPHWC, dated 12.05.2010 passed by the opposite party No.2-Chairman-cum-Managing Director of Odisha State Police Housing and Welfare Corporation Ltd. are liable to be set aside and this Court does so.”
It directed the authorities to implement the original regularization orders within three months, stating, “As a consequence thereof, Orders of the said Corporation regularising the ad hoc services of the petitioners are required to be given effect to. Accordingly, this Court directs the opposite parties to do the needful within a period of three months from date.”
Advocates Representing the Parties
For the Petitioners: Subir Palit, Senior Advocate along with Ananya Pradhan, Advocate.
For the State of Odisha (Opposite Party Nos. 1, 3 & 4): Saswata Pattnaik, Additional Government Advocate.
For Odisha State Police Housing & Welfare Corporation Limited (Opposite Party No. 2): Girija Prasanna Dutta and Kaibalya Manichandan Bhuyan, Advocates .
Case Title: Rabindra Nath Barik & Ors. v. State of Odisha & Ors.
Case Number: W.P.(C) No. 2846 of 2023
Bench: Justice Murahari Sri Raman
[Read/Download order]
