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Patitapaban Division Bench Judgement
Patitapaban Division Bench Judgement
AND
W.A. No. 1118 of 2022
State of Odisha and Another …. Appellants
Mr. A.P. Das, Addl. Standing Counsel
-versus-
Kedar Nath Mantry and Others …. Respondents
Mr. Atul Tripathy, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
JUDGMENT
12.04.2023
Dr. S. Muralidhar, CJ
1. These writ appeals by the State of Odisha are directed against the
impugned judgment dated 9th September, 2021 of learned Single
Judge allowing the writ petitions filed by the Respondents and
directing that their services as Data Entry Operators (DEOs) in the
Tahasils of Cuttack and other districts should be regularized in
terms of a letter dated 17th September, 2013 issued by the General
Administration Department (GA Department), Government of
Odisha since they had already completed six years of service and
Background facts
4. The background facts are that on 24th November, 2006 the
Revenue Disaster Management Department (‘RDM Department’),
Government of Odisha wrote to the Director, Land Records and
Service, Odisha regarding “engagement of Date Entry Operators-
cum-Assistants for preparation and distribution of land passbooks
on contract basis”. The said letter reads as under:
Sir,
9. The requirement was that (i) the engagements should have been
made following the recruitment procedure prescribed for the
corresponding regular posts and (ii) the principle of reservation as
decided by the State Government from time to time. The
regularization of the contractual employees would be effective
from the date of completion of six years of service or from the
date of publication of Resolution (i.e.) 17th September, 2013
whichever was later, in the order in which the names appeared in
the gradation list. The period of six years was to be counted from
the date of contractual appointment prior to the publication of the
said Resolution. Upon regular appointment, the contractual posts,
if any, would get converted to regular sanctioned posts.
13. Thus, it was clear as to who was not eligible for regularization.
in terms of the Resolution dated 17th September, 2013. A High-
Powered Committee (HPC) was to be constituted in order to
ensure that the mandatory eligibility conditions spelt out therein.
17. Following the abolition of the OAT with effect from 2nd
August, 2019 and upon request by the Respondents, the cases in
the OAT were transferred to this Court on 18th November, 2019
and registered as writ petitions one of which was WPC (OAC) No.
554 of 2019 filed by Patitapaban Dutta Dash.
20. After the minutes of the meeting dated 16th March, 2020 a
fresh set of writ petitions were filed including W.P.(C) No.19951
of 2020. In view of the above development, Patitapaban Datta
withdrew WPC (OAC) No. 554 of 2019 on 2nd September 2021
before this Court.
24. The remaining writ appeals came up for hearing on 17th June,
2021 before another Division Bench. After noting that the writ
29. It was contended by the learned AG that the said 600 posts
were ‘temporary posts’ as defined in Clause 45 of the Odisha
Service Code, which defines such post to mean “a post carrying a
definite rate of pay and sanctioned for a limited time.” In response
to the Respondents’ contention that the said 600 posts have not in
fact been abolished as of date, the learned AG has with the written
note of submissions dated 4th April 2023 enclosed a file noting
dated 18th November 2006 which states that the 600 posts of DEO
“will be temporary and contractual which will be abolished on the
expiry of six months.”
31. The position that emerges from the above discussion is that
there is as of date no formal abolition of the 600 posts of DEOs
created earlier by the letter dated 24th November 2006. Even if one
were to assume that they are ‘deemed’ to be abolished then too if
one were to go by the letter dated 24th May 2016 of the RDM
Department which created 692 posts of Junior clerks and the
subsequent letter dated 26th September 2019 of the RDM
Department which granted extension to the DEOs by six months
from 1st September 2019 or “till completion of the process of
recruitment and appointment against such 692 posts of Junior
Clerks created for the Tahasils whichever is earlier” the position is
that the said 692 created posts do exist for being filled up by way
of regular recruitment of DEOs. Either way, it cannot be said that
there are no sanctioned posts to accommodate the DEOs. The
question of having to create ‘supernumerary’ posts to regularise
the services of the DEOs does not arise. There was no such
direction issued by the learned Single Judge, even by implication.
So much for the first of the three criteria of the Resolution dated
17th September 2013.
32. The second of the three criteria was that “the recruitment
procedure prescribed for the corresponding regular posts” should
have been followed. As far as this condition is concerned, the AG
referred to the Odisha Secretariat Data Entry Operators (Methods
33. It is seen that the 2008 Rules applied to the DEOs working in
the Secretariat and not elsewhere. Secondly, they were prospective
and became operational only after their notification on 30th
December, 2008. The Respondents were, however, engaged
earlier than the 2008 Rules, for an initial period of six months,
following a computer test organized by the Collectorates of
various Districts. If that was the recruitment procedure followed at
the relevant time and if in fact the Respondents underwent that
procedure of selection, it could not be said that no recruitment
procedure was followed. In any event there was admittedly no
prescribed recruitment procedure for “the corresponding regular
posts” since till then there were no ‘equivalent’ posts comparable
to that of DEOs. Further each of the Respondent DEOs have by
now i.e. 2023 put in more than 10 years of continuous service.
35. Mr. Tripathy, learned counsel for the Respondents, has placed
on record a copy of the office order dated 14th December, 2018
issued by the RDM Department listing out the actual tasks
entrusted to DEOs in view of the various e-Governance
applications launched by the Government. The relevant portion of
the said office order reads as under:
“xxx xxx xxx
In view of the above, the following works/assignments
are to be entrusted to the Data Entry Operators
engaged in Tahasil Offices and this need to be followed
scrupulously.
36. Therefore, it is obvious that the DEOs are needed for the work
of the Government and have been found fit and qualified to
undertake all of the above tasks. This explains why their services
have been continued from time to time.
41. The second instance is the judgment dated 10th February 2021
of the Division Bench of this Court in W.A. 822 of 2020 (State of
Odisha v. Biswamitra Das), where again after the dismissal of the
State’s SLPs by the Supreme Court, the said judgment has been
implemented. The said judgment is sought to be distinguished by
42. Apart from the above instances, the Respondents have placed
before this Court a compilation of orders of this Court, which have
been upheld by the Division Bench, and in some instances the
Supreme Court of India. These orders have been implemented by
the State Government and the services of the successful contractual
employees have been regularised. A sampling of such orders
include the Office Order dated 1st August, 2014 issued by the ST &
SC Development Department, Government of Odisha, the Office
Order dated 31st December, 2020 issued by the Panchayati Raj and
D.W. Department regularizing the services of one Sri Kishore
Chandra Das, a contractual driver following the order passed by
the High Court in W.P.(C) No.16023 of 2020 affirming the order
passed by OAT in OA No.770 of 2017. Likewise, the order passed
by this Court in W.P.C. (OA) No.814 of 2017 (Susanta Kumar
Dash v. State of Odisha) on 23rd June, 2021 has been implemented
by an Office Order dated 23rd March, 2022 of the Panchayati Raj
and D.W. Department. There are also other orders of regularization
issued on 21st August, 2018. The order passed by the High Court
on 6th January, 2020 in W.A. No.353 of 2019 (Member Secretary
Orissa Water Supply and Sewerage Board v. Soumendra Kumar
Samantaray) has been affirmed by the Supreme Court by its order
dated 17th November, 2020 and this order too has been
implemented by the Government. The services of all the above
similarly placed persons having been regularised by the State
Government, there should be no difficulty in implementing the
impugned judgment of the learned Single Judge. If indeed 2013
Case Law
43. As regards the decision in Umadevi (supra) as explained later
in M.L.Kesari (supra), the Respondents can possibly seek the
extension of the benefit of the ratio of the aforementioned
decisions for two reasons. One, that the Respondents were engaged
against sanctioned posts and two, they were engaged after
qualifying in a computer test. In M.L. Kesari (supra), the Supreme
Court explained:
“It is evident from the above that there is an exception to
the general principles against `regularization' enunciated
in Umadevi, 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
44. Going by the above legal position, in the present cases, at the
highest, the Respondents could be considered to be ‘irregularly’
appointed and therefore would, even on the touchstone of Umadevi
(supra), be eligible for regularisation. The law in M.L. Kesari
(supra), has been reiterated in Amarkant Rai v. State of Bihar
(2015) 8 SCC 265, Sheo Narain Nagar v. State of U.P. AIR 2018
SC 233 and in Rajnish Kumar Mishra v. State of U.P. (2019) 17
SCC 648.
46. Since the above submissions have been made after the
conclusion of the hearing, in the written note, there is no
W.A. No.777 of 2021 and connected cases
Page 27 of 28
opportunity to the Respondents to reply to them. In any event,
assuming they are factually correct, if DEOs have been engaged
since 2010, they have by now completed over 10 years. If 91 of
them are through outsourcing agencies, then their cases can be
considered with other similarly placed DEOs who have come in
through outsourcing, whose cases are being considered in a
separate batch of matters listed in this Court on 8th August 2023.
Thirdly, as regards Respondents 7 and 8, the 2013 Rules had
required at least 6 continuous years of service for being eligible for
regularisation. Since the orders of implementation of the judgment
of the learned Single Judge will be obviously issued separately for
each person, case by case, the State will keep this aspect in view in
individual cases. None of these appear to be good reasons to deny
implementation of the impugned judgment of the learned Single
Judge.
Conclusion
47. For the aforementioned reasons, the Court is not persuaded to
interfere with the impugned judgment of the learned Single Judge.
It should now be implemented in letter and spirit within a period of
twelve weeks. The writ appeals are dismissed, but in the
circumstances, with no orders as to costs.
(S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
SK Jena/Secy.